Govindaraja Setty v. K.L Puttaswamiah & Sons .

1. This judgment shall dispose off both the above cases.

2. The appellant in M.S.A 13 of 1970 is the petitioner in C.R.P No. 268 of 1970.

3. The suit out of which the miscellaneous second appeal arises was instituted by the respondent for the recovery of a sum of Rs. 4,815-73 with interest and costs due to him as per the extract of the accounts from 8-4-1965 to 6-12-1965.

4. The suit was decreed by the trial court.

5. During the pendency of the appeal filed by the defendant, the plaintiff filed an application I.A No. II for amending his plaint, and, by the amendment, he wants to amplify paragraph 2 of the plaint by incorporating the account extract from 10-1-1962 to 31-3-1965. According to him, the defendant was due to the plaintiff in a sum of Rs. 5,737-63 as on 31-3-1965. The amounts received subsequent to the said date according to him, have been credited and given set off towards the earlier debit items due prior to 8-4-1965. Despite the objection of the defendant, the amendment was allowed by the order dated 23-7-1969. The above civil revision petition is directed against that Order. On 2-8-1969, the appellate court has allowed the appeal by framing two issues and remanded the case for trial in view of the amended pleadings of the parties. The miscellaneous second appeal is directed against that judgment.

6. Mr. B.K Ramachandra Rao, the learned counsel for the appellant submits that the procedure adopted by the appellate court is wholly illegal. It has taken up the consideration of the application for amendment on 23-7-1969 and on that date, it never considered the appeal on merits. Consequent on allowing the amendment, it has allowed the appeal and remanded the case for re-trial. This procedure, according to him, shall not be permitted in view of the limited power of the appellate Court while dealing with an amendment application.

7. There is considerable force in this submission. The power of the appellate court to remand a case is circumscribed by the provisions of Order XLI Rule 23 C.P.C It could remand the case only if it considered the case on merits and if it comes to the conclusion that the decree of the trial court cannot be sustained.

8. In the instant case, the appellate court has not gone into the merits of the appeal. It has not considered the evidence on record. If it goes into the merits of the appeal, it may sustain the decree or it may not. If it sustains the decree, the amendment proposed is unwarranted. The amendment application, therefore, cannot be considered before the appeal to beard an merits.

9. For the reasons stated above, the miscellaneous second appeal and the civil revision petition are allowed. The impugned judgment and order in both these cases are set aside. The appellate court is directed to dispose of the appeal on merits and the application for amendment may also be considered along with it.

10. The appellant in the miscellaneous second appeal will get his costs in this court. In the civil revision petition, there will be no order as to costs.