( By Sri. M SUDHAKAR PAI, ADV.) v. MANGALORE

( By Sri. M SUDHAKAR PAI, ADV.) ...APPELLANTS AND : 1 FELIX AMBROSE D"SOUZA S/O LATE MINGEL D SOUZA R/AT BOLLAJE HOUSE IDYA VILLAGE MANGALORE (D.K.)-575001 2 MARCY D SOUZA AGED ABOUT 49 YEARS D/O LATE MINGEL D SOUZA R/AT BOLLAJE HOUE KATIPALLA POST MANGALORE TALUK (DK) 3 ...RESPONDENTS THIS MSA FILED U/O 43, R 1(u) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:19.09.2009 PASSED IN R.A.NO. 82/1991 ON THE FILE OF THE II-ADDL. CIVIL JUDGE, (SR. DN.), MANGALORE, D.K., ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED: 10.04.1991 PASSED IN O.S.NO.490/1990 ON THE FILE OF THE PRINCIPAL MUNSIFF, MANGALORE. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGEMENT Though respondents are served, but have remained unrepresented.

2. Appellants are the respondents in Regular Appeal No.82 of 1991 on the file of Civil Judge (Sr. Dn.), Mangalore. The defendants have filed the first appeal and had also filed IA.II under Order VI Rule 17 and Section 151 of he Code of Civil Procedure (hereinafter referred to as 'CPC' for short) seeking amendment of the written statement and the same came to be allowed. Since the first defendant died during the pendency of the appeal, his legal representatives were brought on record. Thereafter, by its order dated 19th September 2009 the First Appellate Court, remanded the 4 matter to the Trial Court with regard to considering of the carrying out of amendment and to give an opportunity to lead additional evidence. Being aggrieved by the same, the present appeal is filed.

3. The learned counsel for the appellants submits that the first respondent filed the suit OS No.490 of 1990 for bare injunction. It is the case of the wife of the deceased that the deceased had executed will in her favour and later on it was confirmed by this Court in RFA No.134 of 2004. The learned counsel submits that when IA.II for amendment of written statement was filed, it could have been disposed of by the First Appellate Court itself instead of remanding the matter to the Trial Court. No circumstance warrant for remanding the matter to the Trial Court. In support of this submission, the learned counsel relies on the judgment of this Court in the case of MOHANDAS DATTARAM PRABHU AND OTHERS v. U.F.M. MUKUND HONAPPA NAIK reported in ILR 2003 KAR 2421 wherein it is held that the power of remand of Appellate Court to be exercised only after recording a finding that the order impugned is erroneous and the said power has 5 to be exercised sparingly. It is further submitted that the First Appellate Court has not recorded any reasons for remanding the matter to the Trial Court. Hence, he submits that in view of the fact that the First Appellate Court has not assigned any cogent reasons for remanding the matter to the Trial Court, the same vitiates and hence remanding order is to be set aside and a direction is to be issued to the First Appellate Court to dispose of the matter.

4. Heard the appellant and gone through the judgment and order passed by the First Appellate Court. When an application is filed for amendment in the First Appellate Court, and once it is allowed, it is not automatic for remanding the matter to the Trial Court. When a decree is passed by the First Appellate Court, for all purposes, the same has to be considered as final and it is binding on the parties. While an appeal is filed in the First Appellate Court, its validity and correctness of, if at all there is any error, the same has to be considered in the light of the evidence and materials available. The First Appellate Court itself could have gone into the matter on the basis materials and evidence available on 6 its regard; and unless it is required under Rules 23, 24 and 25 Order 41 CPC, the appeal cannot be remanded for reconsideration. The First Appellate Court ought to have taken the evidence itself. Further, this Court, in the case of SHANTHAVEERAPPA v. K.N. JANARDHANACHARI reported in ILR 2007 KAR 1127 has held that an appeal is a continuation of the original proceedings and in effect the entire proceedings are before the Appellate Court and it has the power to re-appreciate the evidence for the convenience of the Appellate Court. The relevant portion of the said judgment is extracted below: “11. An appeal is a continuation of the original proceedings. In effect the entire proceedings are before the Appellate Court and it has power to re- appreciate the evidence. It has the power to amend the pleadings, frame issues, resettle issues, delete issues, receive evidence by way of additional evidence, record evidence, summon witnesses and documents, order for commission, pass interim orders. It can also take note of subsequent events. In addition to the power of Trial Court, it has been vested with the power of remand. Power to set aside, modify, reverse, and 7 affirm the judgment of the Trial Court. It also has the power to entertain Cross Appeal and power to grant relief to a party to the proceedings who has not preferred appeal and set aside the findings recorded against the respondent in the appellant’s appeal. Thus, the power of the First Appellate Court is unlimited. The reason being that it should be able to meet any contingency or situation and pronounce judgment finally in order to do complete justice between the parties. It cannot plead or feel helpless to meet any situation arising in a case to resolve the dispute between the parties. That is the ambit and scope of the jurisdiction of the first Appellate Court. Therefore, the legislature has entrusted a very important duty to the First Appellate Court, and it is for that Court to decide finally all questions of fact on which the disposal of the suit might depend. To order retrial of a case is a serious matter and may mean considerable waste of public time. An order of remand should not be taken to be a matter of course. The power of remand should be sparingly exercised. The endeavour should be to dispose of the case finally by the First Appellate Court itself. When the Trial Court after considering the evidence, has come to a conclusion, the Appellate Court should not ordinarily remand the case, it 8 should see first whether it can dispose of the case itself under order 41 Rule 27 CPC”

5. In view of the judgments referred supra, the order of remanding by the First Appellate Court to the Trial Court is bad in law, since no cogent reasons have been assigned. The First Appellate Court itself should have gone into the matter on the basis of available materials and evidence. Hence, the order of the First Appellate Court, insofar as it relates to remanding the matter to the Trial Court, is set aside and the First Appellate Court is directed to decide the appeal on merits as per law.

6. Accordingly, Miscellaneous Civil 888 of 2010 is