AKKI SHIVAMMA Vs. BEMMANAGUDDI SHANKARAPPA

JUDGEMENT

(1.) I have heard the petitioners' learned Advocate as also the respondents' learned Advocate.

(2.) THESE civil revision petitions raise an interesting facet of some significance with regard to the interpretation of Rule 25 of order 41 of the C. P. C. Briefly stated, what had happened was that the present petitioner filed a suit before the Trial Court for certain mandatory reliefs and the real point of friction was the question as to whether the defendants who are the respondents here, should be ordered to remove certain stone slabs which according to the plaintiffs were causing some obstruction. The suit was decreed in favour of the plaintiffs and the defendants carried the matter in appeal. At the hearing of the appeal, the defendants raised a point with regard to the legality of both the possession and ownership of the disputed area. They contended that in the written statement, they had taken up the plea that the plaintiffs' original vendors did not possess any clear title in respect of this area and that therefore, neither the possession nor the ownership is established. The argument proceeded on the footing that the area in question belongs to a public authority as certain public performances were organised there and it was also contended that the plaintiffs cannot claim any reliefs in respect of that area without first establishing their possession and ownership. The learned Appellate Judge after considering the law on the point, recorded the finding that this aspect of the matter is very basic to the decision of the appeal and he also took note of the fact that the defendants had raised this point in their written statement. The learned Judge therefore, held that it was necessary to frame an additional issue with regard to this aspect of the case and to remand the matter to the Trial Court for the limited purpose of doing this and recording any evidence that may have been necessary for this purpose. It is against this order of remand, that the present civil revision petitions have been filed. There are two petitions because, basically, two applications were made, one for framing an additional issue and the second one for recording additional evidence.

(3.) THE petitioners' learned Advocate has assailed the order in question because, he submits that it is impermissible in law for such an order to have been passed on the state of the present record. The learned Advocate does not dispute the fact that in appropriate cases even at the appellate stage, it may be permissible to direct the framing of an additional issue and the recording of additional evidence, but he points out that the burden of establishing that there is justification for this and more importantly, that the party applying to the appeal Court had just and valid ground for not having agitated this aspect of the matter before the Trial Court, must be first proved to the satisfaction of the appeal Court. The learned Advocate submits that no reasons were put forward before the appeal Court as to why the defendants did not agitate this aspect of the case at the time of the trial nor has anything been stated that they were prevented from doing so. He submits that this special provision that is contained in Order 41, Rule 25 can be invoked only in appropriate and exceptional cases provided there is sufficient material to justify such an indulgence and that in the absence thereof, it should not and cannot be permitted. Furthermore, on merits, learned Advocate submits that the ground itself is frivolous because the title of the plaintiffs' vendor is now sought to be questioned in respect of a transaction that has taken place several decades back and that it is very clear, that there is no substance whatsoever in this ground which can never be established. He submits that the whole exercise is to delay the execution of the decree which the plaintiffs have obtained by seeking to reopen the matter before the Trial Court and he, therefore, submits that both in law and on facts, interference is called for by this Court.