Common Judgement:
K. Lakshman, J.
1. Heard Mr. A.P.Venugopal, learned counsel for the appellant in A.S.No.235 of 2015 and respondent No.3 in A.S.No.796 of 2011; Mr. Dharmesh D.K.Jaiswal, learned counsel representing Mr. V.Ramchander Goud, learned counsel for the respondent No.1 in A.S.No.235 of 2015 and for the appellant in A.S.No.796 of 2011, Mr. Srinivas Polavarapu, learned counsel appearing for respondent Nos.2 and 3 in A.S.No.235 of 2015 and respondent Nos.1 and 2 in A.S.No.796 of 2011.
2. A.S.No.796 of 2011 is preferred by the appellant/plaintiff against the respondent Nos.1 and 2 herein/Defendant Nos.1 and 2 and respondent No.3/third party/appellant in A.S.No.235 of 2015 under Section 96 of CPC, assailing a portion of judgment and decree dated 21.09.2011 in O.S.No.812 of 2006 passed by III Additional District Judge, Ranga Reddy District. The Appellant in A.S.No.235 of 2015 is impleaded as respondent No.3 in A.S.No.796 of 2011 vide order dated 18.02.2019 in I.A.No.2 of 2019.
(For sake of convenience, parties herein are referred to as they were referred in O.S.No.812 of 2026)
3. The aforesaid suit was filed by the plaintiff for specific performance of agreement of sale dated 18.05.2006 against defendant Nos.1 and 2 in respect of the suit schedule property i.e. All that agricultural land admeasuring Ac.4.14 guntas in Sy.No.513 and Ac.0.21 guntas in Sy.No.515 in total Ac.4.35 guntas, situated at Pudur Village, Medchal Mandal, Ranga Reddy District with the boundaries specified therein.
4. Respondent Nos.1 and 2 herein/Defendant Nos.1 and 2 were set ex parte.
5. Vide impugned judgment and decree, learned trial Court directed the appellant/plaintiff to deposit the balance sale consideration within two months with interest at the rate of 12% p.a. from the date of suit till the date of deposit, and Defendant No.1 shall execute the regular sale deed in respect of the suit schedule property in favour of the plaintiff within one month, after deposit of the amount, and in default of execution of sale deed, the plaintiff is at liberty to get the sale deed executed through due process of Court, and the Defendant Nos.1 and 2 were restrained from alienating the suit schedule property.
6. A.S.No.235 of 2015 is preferred by respondent No.3 in A.S.No.796 of 2011/third party assailing the judgment and decree dated 21.09.2011 in the aforesaid suit.
7. The plaintiff filed I.A.No.4 of 2019 in A.S.No.235 of 2019 under Order 1 Rule 10 of CPC, to implead Mr.Bobbili Venkatrami Reddy in the suit O.S.No.812 of 2006 as defendant No.3 and permit to carry consequential amendment to the plaint in the said suit as follows:-
Add para-6A:
It is submitted that the Defendant No.3 (Bobbili Venkat Ram Reddy) alleged to have purchased the suit property from the Defendant No.1 through regd. sale deed doc.No.25789/2006 dt.17.11.2006, behind the back of the plaintiff. The plaintiff has learnt about the existence of the alleged registered sale deed document No.25789/2006, dated 17.11.2006, when the Defendant No.3 (Bobbili Venkat Ram Reddy) filed appeal AS No.235/2015 before the High Court against the decree and judgment passed by this Court against the defendants No.1 & 2 in OS No.812/2006 dt.21.09.2011.
Add para-6B:
It is submitted that the Defendant No.3 (Bobbili Venkat Ramreddy) brought up the read, sale deed doc. No. 25789/2006 dt 17.11.2006 in respect of the suit property with full knowledge of existence of agreement of sale dated 08.05.2006 in favour of the Plaintiff entered into by the defendant No.) in respect of the suit property, which was prior in point of time. Hence, the defendant No.3 (Bobbili Venkat Ranıreddy) is not a bona fide purchaser, much less, for value. The alleged sale deed dt.17.11.2006 is not supported by consideration. The defendant No.3 (Bobbili Venkat Ramreddy) is bound by the agreement of sale dt.08.05.2006 entered into by the defendant No. 1 in favour of the plaintiff. Hence, the defendant No.3 (Bobbili Venkat Ramreddy) is under obligation to join with the defendant No.1 to convey the title in the suit property as per the agreement of sale dt.08.05.2006.
Relief-A:
Add in relief-A the following after the words 'Schedule hereto and the Defendant No.3 be directed to join with the defendant No.1 as co-vendors in the sale deed to convey proper title to the Plaintiff in respect of the suit property, pending disposal of the A.S.No.235 of 2015.”
8. Vide order dated 30.08.2019, this Court ordered the said application permitted plaintiff to carry out amendments as sought holding as follows:-
“Since it is the contention of the 1" respondent/appellant himself that he is the affected party on account of the decree passed by the Court below against him in O.S.No.812 of 2006 and that he was a necessary party to the suit itself, and since the 1 respondent/appellant had already been granted leave to file this appeal, in our considered opinion, in view of proviso to sub-section (2) of Section 22 of the Act, this Court has ample power to permit amendment of the plaint by the petitioner/plaintiff.
By permitting the said amendment, the 1" respondent/ appellant would also get an opportunity to plead all the defences open to him in law by filing an appropriate written statement in regard thereto and it would be beneficial to the 1st respondent also to know the case of the petitioner against him and to meet it by filing an appropriate written statement.
Therefore, we allow this application, subject to the petitioner paying appropriate Court Fee thereon, and grant liberty to the 1st respondent/appellant as well as respondents 2 and 3 to file written statement/additional written statement thereto within a period of eight (08) weeks of service of amended copy of the plaint on the respondents.”
9. It is apt to note that there is no challenge to the said order. Defendant No.3 i.e. appellant in A.S.No.235 of 2015 filed written statement on 18.12.2019.
10. Similar application was filed in A.S.No.796 of 2011 vide I.A.No.3 of 2019 under Order 6 Rule 17 of CPC read with Section 151 of CPC to implead Sri B.Venkat Rami Reddy as respondent No.3 in A.S.No.796 of 2011 and permit consequential amendments in the plaint. The same was also allowed on 30.08.2019. There is no challenge to the said order.
11. As discussed supra, the plaintiff had filed the aforesaid suit O.S.N.812 of 2006 against the defendants seeking specific performance of agreement of sale dated 18.05.2006 and also restrain them from alienating the suit schedule property. The Defendant Nos.1 and 2 were set ex parte. The plaintiff examined himself as P.W.1 and got marked Exs.A.1 to A.9.
12. Since the defendant Nos.1 and 2 were set ex parte, there was no occasion for the trial Court to frame issues. However, learned trial Court framed the following points for consideration:-
1. Whether the plaintiff is entitled for specific performance of agreement of sale dated 18.05.2006 in respect of the plaint schedule property against the defendants as prayed for?
2. To what relief?
13. Considering on the aforesaid evidence, i.e. P.W.1 and Exs.A.1 to A.9, learned trial Court decreed the said suit with the following directions:-
i. The plaintiff is directed to deposit the balance sale consideration within two months with interest @ 12% per annum from the date of the suit till the date of such deposit and D.1 shall execute the regular sale deed in respect of the plaint schedule property in favour of the plaintiff within one month, after deposit of the amount;
ii. In default of execution of sale deed, the plaintiff is at liberty to get the sale deed executed through due process of Court;
iii. D.1 and D.2 are restrained from alienating the schedule property.
14. The plaintiff preferred A.S.No.796 of 2011 challenging the said judgment and decree to the extent of directing him to deposit amount/interest at the rate of 12% p.a. on the balance sale consideration from the date of suit till the date of deposit.
15. It is apt to note that Defendant Nos.1 to 3 did not prefer an appeal challenging the said judgment.
16. As discussed supra, the appellant/Third party to the suit in A.S.No.235 of 2015 preferred the said appeal challenging the said judgment and decree contending that Ex.A.1 agreement of sale dated 18.05.2006 is not in existence. There was no demand by the plaintiff to the defendant Nos.1 and 2. Ex.A.1 is only a receipt but not an agreement of sale. There was no date mentioned in Ex.A.1 and signature of Defendant No.2 was obtained above the affixed revenue stamp, but not across the revenue stamp. Therefore, Ex.A.1 is created for the purpose of filing the suit. Ex.A.1 refers to Sy.No.521/515, whereas there was only Sy.No.515 in existence. Cheque number referred in Ex.A.1 does not belong to Defendant No.1 and it belongs to one Mr.Krishna Reddy. Without considering the said aspects, learned trial Court decreed the said suit filed by the plaintiff seeking specific performance of agreement of sale. The appellant is claiming right over the suit schedule property basing on the registered sale deed dated 17.11.2006 obtained from Defendant No.2. The judgment and decree dated 21.09.2011 in O.S.No.812 of 2006 is a collusive decree. Therefore, the appellant in A.S.No.235 of 2015 sought to set aside the said judgment and decree.
17. We have heard learned counsel for the appellants in both the appeals/plaintiff and defendants.
18. As discussed supra, the impugned judgment and decree is an ex parte judgment and decree. Defendant Nos.1 and 2 were set ex parte in the said suit. They did not prefer any appeal challenging the said judgment and decree.
19. Whereas, the appellant in A.S.No.235 of 2015 is claiming right over the subject property basing on a registered sale deed bearing document No.25789 of 2006 dated 17.11.2006 executed by Singireddy Malla Reddy, Defendant No.1, and the same is in respect of agricultural land to the extent of Ac.1.14 in Sy.No.513, Ac.0.21 in Sy.No.515 situated at Pudur Village, Medchal Mandal. The said property and the suit schedule property in O.S.No.812 of 2006 are one and the same. Thus, according to the appellant in A.S.No.235 of 2015, he is also a necessary party to the aforesaid suit and he is seeking to set aside the impugned judgment and decree.
20. As discussed supra, vide order dated 30.08.2019 in I.A.No.4 of 2019 in A.S.No.235 of 2019 and I.A.No.3 of 2019 in A.S.No.796 of 2011, this Court permitted the appellant in A.S.No.235 of 2015 to implead as Defendant No.3 in the said suit and also permitted the consequential amendments. Liberty was granted to the appellant in A.S.No.235 of 2015 and defendant Nos.1 and 2 to file written statement/additional written statement thereto within a period of eight weeks. They have already filed written statement. Considering the said aspects, both the learned counsel for the appellants and respondents/defendants sought to remand the matter to the trial Court.
21. Whereas, Sri Dharmesh D.K. Jaiswal, learned counsel for the appellant in A.S.No.796 of 2011 sought to remand the matter to the trial court by invoking Order XLI Rule 25 of CPC on framing issues by this Court and refer the same to the trial Court to decide the said issues.
22. Whereas, learned counsel for the appellant in A.S.No.235 of 2015 sought to remand the matter to decide all the issues by invoking power of this Court under Order XLI Rule 23 and 23-A and 25 of CPC.
23. In the light of the said submissions, Order XLI Rule 23, 23-A and 25 of CPC are relevant and the same are extracted below:-
23. Remand of case by Appellate Court.—Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
23A. Remand in other cases.—Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.
25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.—Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required;
and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time.
24. Thus, as per the Order XLI Rule 23 of CPC, this Court can remand the matter to the trial Court on an appeal preferred against the decree of the Trial Court after satisfying the following conditions:-
(i) The Trial Court must have passed the decree only on a preliminary point, without going into the merits.
(ii) The Appellate Court must reverse the decree passed by the Trial Court.
(iii) The Appellate Court must consider a remand necessary for proper adjudication.
(iv) The Appellate Court may direct the Trial Court to try such issue/issues as may be necessary.
(v) The Appellate Court must be cautious that the scope of remand in terms of Order XLI Rule 23 is extremely limited.
25. Whereas, in terms of Order XLI Rule 23-A of CPC, High Court can remand the matter to the trial Court on considering the facts other than a preliminary point, the decree is reversed in appeal, re-trial is considered necessary. The reversal has to be based on cogent reasons.
26. Whereas, in terms of Order XLI Rule 25 of the CPC, this Court has to frame issues and refer them to the Trial Court on satisfaction of the following conditions:
(i) An appeal must be pending before the Appellate Court against a decree of the Trial Court.
(ii) The Trial Court must have omitted to frame/try any material issue or to determine any question of fact.
(iii) The omitted issue/question must be essential for proper adjudication of the suit on merits.
(iv) The Appellate Court may frame the omitted issues, if necessary, and refer them to the Trial Court with a direction to take additional evidence.
(v) The Appellate Court continues to be in seisin of the matter, while the Trial Court conducts trial on the omitted issues/questions and returns evidence along with finding within fixed time.
27. In Jegannathan vs. Raju Sigamani and another ((2012) 5 SCC 540), in paragraph Nos.6 to 8, the Apex Court held as follows:-
6. Order 41 Rule 23 is invocable by the appellate Court where the appeal has arisen from the decree passed on a preliminary point. In other words, where the entire suit has been disposed of by the trial Court on a preliminary point and such decree is reversed in appeal and the appellate Court thinks proper to remand the case for fresh disposal. While doing so, the appellate Court may issue further direction for trial of certain issues.
7. Order 41 Rule 23A has been inserted in the Code by Act No. 104 of 1976 w.e.f. February 1, 1977. According to Order 41 Rule 23A of the Code, the appellate Court may remand the suit to the trial Court even though such suit has been disposed of on merits. It provides that where the trial Court has disposed of the Suit on merits and the decree is reversed in appeal and the appellate Court considers that retrial is necessary, the appellate Court may remand the suit to the trial Court.
8. Insofar as Order 41 Rule 25 of the Code is concerned, the appellate Court continues to be in seisin of the matter; it calls upon the trial Court to record the finding on some issue or issues and send that finding to the appellate Court. The power under Order 41 Rule 25 is invoked by the appellate Court where it holds that the trial Court that passed the decree omitted to frame or try any issue or determine any question of fact essential to decide the matter finally. The appellate Court while remitting some issue or issues, may direct the trial Court to take additional evidence on such issue/s.
28. Sri Dharmesh D.K.Jaiswal, learned counsel appearing for appellant in A.S.No.796 of 2011 placed reliance on the principle laid down by the Apex Court in Shanti Devi vs. Daropti Devi ((2006) 13 SCC 775) and H.P.Vedavyasachar vs. Shivashankar ((2009) 8 SCC 231) to contend that as to what extent this Court can remand the matter to trial Court in terms of Order XLI Rules 23, 23-A and 25 of CPC. In Shanti Devi (supra), the Apex Court held that the trial Court did not frame any issue with regard to ‘Will’. Therefore, the Apex Court, on examination of the facts of the said case, held that perusal of the plaint would show that the validity and/or legality of the Will has been challenged on a number of grounds; one of them being suspicious circumstances surrounding the execution of the Will purported to have been executed by Smt. Budho Bai. Existence of suspicious circumstances may not lead to an inference that the Will was invalid in law, but would certainly be a relevant factor to arrive at a finding that the Will was not executed by the testator in a sound and disposing state of mind. The Apex Court further held that the same by itself could not be a ground for remitting the entire suit to the learned Trial Judge upon setting aside the decree of the learned Trial Court. The power of remand vests in the Appellate Court either in terms of Order XLI Rules 23 & 23A or Order XLI Rule 25 of the Code of Civil Procedure. Issue No. 4 was held to have been wrongly framed. Onus of proof was also wrongly placed and only in that view of the matter the High Court thought it fit to remit it to the learned Trial Judge permitting the parties to adduce fresh evidence. It, therefore, required the learned Trial Judge to determine a question of fact, which according to it was essential, upon reframing the issue. Only, thus, additional evidences were required to be adduced upon reframing the issue and having regard to the fact that onus of proof was wrongly placed on the plaintiff. Therefore, the Apex Court found fault with the High Court in framing the issue remanding the matter to the trial Court by invoking power under Order XLI Rule 25 of CPC. High Court would not have remitted the matter in its entirety which could have done by the Court in exercise of power under Order XLI Rule 23, 23-A of CPC.
29. The Apex Court took the same view in H.P. Vedavyasachar (supra).
30. In the light of the said principles, coming to the facts of the present case, as discussed supra, the plaintiff had filed the aforesaid suit against Defendant Nos.1 and 2 seeking specific performance of agreement of sale. Defendant Nos.1 and 2 were set ex parte. The trial Court decreed the said suit directing the plaintiff to deposit the balance sale consideration amount along with interest at the rate of 12% per annum. The plaintiff is aggrieved with the said portion of the judgment and decree. The plaintiff placed reliance on Ex.A.1 agreement of sale dated 18.05.2006. Whereas, Defendant No.3/appellant in A.S.No.235 of 2015 disputes the same and he is claiming right over the subject property basing on the registered sale deed bearing Document No.25789 of 2006 dated 17.11.2006. Thus, both the plaintiff and defendant No.3/appellant in A.S.No.235 of 2015 are claiming right over the very same property. Even according to the appellant in A.S.No.235 of 2015, the aforesaid registered sale deed was obtained by him from Defendant No.1 by paying sale consideration. In the said sale deed, there are specific recitals with regard to the payment of sale consideration of Rs.24,34,500/-i.e. Rs.4,57,500/- paid in cash and Rs.4,95,000/- in four installments through four cheques dated 17.11.2006.
31. As discussed supra, there is no challenge to the order dated 13.08.2019 in I.A.No.4 of 2019 in A.S.No.235 of 2015 and I.A.No.3 of 2019 in A.S.No.796 of 2011. The said orders attained finality. The appellant in A.S.No.235 of 2015/Defendant No.3 had filed written statement in compliance with the said order. During the course of hearing, it is brought to the notice of this Court that the appellant in A.S.No.235 of 2015/Defendant No.3 also paid court fee in compliance with the said order.
32. Sri Dharmesh D.K.Jaiswal, learned counsel for the appellant in A.S.No.796 of 2011 referring to Section 14 of the Limitation Act,1963 would contend that if opportunity is given to the appellant in A.S.No.235 of 2015, his claim would be barred by limitation. Therefore, the additional issue may be framed to the extent of claim of the appellant in A.S.No.235 of 2015/Defendant No.3 by this Court and remand the matter to the trial Court only to decide the said issue. However, the said contention of Sri Dharmesh D.K.Jaiswal, learned counsel for the appellant in A.S.No.796 of 2011 cannot be accepted since there was no challenge to the aforesaid orders, dated 30.08.2019.
33. As discussed supra, Defendant Nos.1 and 2 were set ex parte in O.S.No.812 of 2006. They did not file written statement. Therefore, there was no occasion for the trial Court to frame issues. However, learned trial Court framed the aforesaid issue for determination. Learned trial Court recorded the evidence of P.W.1/plaintiff and marked Exs.A.1 to A.9.
34. As discussed supra, at the cost of repetition, the plaintiff is also aggrieved by the impugned judgment to the extent of directing him to deposit balance sale consideration amount along with interest at the rate of 12%p.a. Thus, the present case satisfy the requirements under Order XLI Rule 23-A of CPC i.e. the decree was passed by the Trial Court on a point other than a preliminary point, the decree is being reversed in appeal and re-trial is considered necessary on the basis of cogent reasons.
35. Therefore, we are of the considered view that we have to invoke Order XLI Rule 23-A of CPC, and remand the matter to trial Court with a direction to decide the said suit afresh by framing issues and permitting the parties to adduce evidence, both oral and documentary.
36. In the light of the aforesaid discussion, these appeals are disposed of. The impugned judgment and decree dated 21.09.2011 in O.S.No.812 of 2006 passed by III Additional District Judge, Ranga Reddy District, is set aside. The matter is remanded to the trial Court with a direction to decide the said suit O.S.No.812 of 2006 strictly in accordance with law. Liberty is granted to the defendants to file written statement in the trial Court. Liberty is also granted to the appellant in A.S.No.796 of 2011/plaintiff to file rejoinder if any. Liberty is also granted to the parties to lead evidence, both oral and documentary. The trial Court has to decide the said suit afresh by framing the issues, permitting the parties to adduce evidence, both oral and documentary and dispose of the suit strictly in accordance with law.
37. As discussed supra, the suit is of the year, 2006. Therefore, learned trial Court shall make an endeavour to dispose of the said suit strictly in accordance with law within a period of six (6) months from the date of receipt of a copy of this judgment. The parties shall cooperate with the trial Court in disposal of the said suit within the aforesaid timeline. However, there is no order as to costs.
Consequently, miscellaneous petitions, if any pending, in these appeals, shall stand closed. No costs.
