Kerala High Court
Chandran N.C vs Naduchalil Rajan on 13 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
Friday, the 13th day of August 2021 / 22nd Sravana, 1943
RSA NO. 446 OF 2018 (C)
AS.16/2014 OF THE SUB COURT,VADAKARA
OS.8/2012 OF THE MUNSIFF COURT,VADAKARA
APPELLANT/APPELLANT/PLAINTIFF:
CHANDRAN N.C.,S/O.KUNHIKANNAN,AGED 69 YEARS,NADUCHALIL HOUSE,AZHIYUR
AMSOM AND DESOM, VATAKARA TALUK,KOZHIKODE DISTRICT.
BY ADVS.SRI.U.K.DEVIDAS,SRI.K.K.ANILRAJ
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1. NADUCHALIL RAJAN,S/O. KUKANCHI,AGED 64 YEARS, NADUCHALIL
HOUSE,AZHIYUR AMSOM AND DESOM, VATAKARA TALUK,KOZHIKODE DISTRICT
-673 308.
2. SHIJITH @ SHIJU,S/O. KUMARAN,AGED 45 YEARS, NADUCHALIL PARAMBIL
HOUSE,AZHIYUR AMSOM CHOMBALA DESOM,VATAKARA TALUK,KOZHIKODE DISTRICT
-673 308.
R1 BY ADVS.SRI.B.KRISHNAN, SRI.R.PARTHASARATHY
R2 SRI.SAJEEVAN KURUKKUTTIYULLATHIL, VISHNU PRABHAKAR V.S.
This Regular second appeal having come up for orders on 13.08.2021,
the court on the same day passed the following:
N.ANIL KUMAR, J.
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R.S.A.No.446 of 2018
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Dated this the 13th day of August, 2021
ORDER
This Regular Second Appeal is directed against
the judgment and decree dated 18.03.2015 in
A.S.No.16/2014 on the file of the Sub Court,
Vadakara (hereinafter referred to as 'the first
appellate court') arising from the judgment and
decree dated 31.03.2014 in O.S.No.8/2012 on the file
of the Munsiff's Court, Vatakara (hereinafter referred
to as 'the trial court'). The appellant herein is the
plaintiff. The suit was for fixation of boundary. The
respondents contested the suit on diverse grounds.
After framing appropriate issues and recording the
evidence, the trial court decreed the suit in part as
follows:-
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"In the result, suit is partly decreed as
follows in order to avoid multiplicity of
proceeding for clarifying the northern
boundary of plaintiff's property
corresponding to southern boundary of
defendants' property.
1. ADE survey boundary line
described in Ext.C1(a) plan is the
northern boundary of plaint schedule
property corresponding to the
southern boundary of defendants'
property.
2. Ext.C1(a) plan shall form part of the
decree.
3. Each party shall bear their respective
costs."
2. Assailing the judgment and decree of the
trial court dated 31.3.2014, the plaintiff preferred an
appeal before the Sub Court, Vadakara. On hearing
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the appeal, the first appellate court remanded the suit
to the trial court on the following terms:-
"In the result,
a) That the judgment and decree passed
by the Munsiff's Court, Vadakara in O.S.8/12
dated 31.03.14 is hereby set aside subject to the
affirmation of the finding of the trial court that the
actual boundary in between the plaintiff's and
defendants' property is the intervening survey sub
division boundary.
b) That the matter is remanded back to
the trial court for limited purpose for identifying
and locating the survey sub division boundary in
between the survey filed 15/1 and 2 on the north
and 15/7 and 8 on the south.
c) That the plaintiff has to take steps for
appointing a commissioner with the assistance of
Taluk Surveyor to measure, identify and earmark
the said survey sub division boundary.
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d) After identifying the survey sub division
boundary, the trial court has to dispose of the suit
in accordance with law.
e) That the parties shall suffer their
respective cost in the appeal proceedings.
f) That the parties shall appear before the
trial court on 21.05.15."
3. The order of remand dated 18.03.2015 was
challenged by the plaintiff by filing this regular second
appeal before this Court under Section 100 of the
Code of Civil Procedure, 1908 (for short 'the Code').
4. Heard Sri.Anil Raj.K.K., the learned counsel
for the appellant and Sri.R.Parthasarathy, the learned
counsel for the respondents.
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5. Order XLI of the Code provides for appeal
from original decrees. The Code empowers the
appellate court to pass an order of remand in three
specific situations. These three specific situations are
covered by Order XLI Rule 23, Order XLI Rule 23A and
Order XLI Rule 25 of the Code. In this connection,
Order XLI Rules 23, 23A and 25 of the Code, which
are relevant for this appeal are as under:-
"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, or where the Appellate Court in
reversing or setting aside the decree under
appeal considers it necessary in the interests of
justice to remand the case, the Appellate Court
may 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
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of its judgment and order to the Court from
whose decree the appeal is preferred, with
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
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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.
6. Going by the above rules, it is clear that
Order XLI Rule 23 is invokable by the appellate court
where the appeal has arisen from the decree passed
on a preliminary point and the decree is reversed in
appeal. Order XLI Rule 23A of the Act provides that
the Appellate Court may remand the suit to the trial
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court even though such suit has been decided on
merits. It provides that where the trial court has
disposed of the suit on merits otherwise than on a
preliminary point and the decree is reversed in appeal
and if the appellate court considers that re-trial is
necessary, the appellate court may remand the suit to
the trial court. Insofar as Order XLI Rule 25 of the
Code is concerned, the appellate court continues to be
in seisin of the matter and it calls upon the trial court
to record the finding on some issue or issues and send
that finding to the appellate court, within such time as
may be fixed.
7. Going by the judgment of the trial court, it is
clear that, in the case at hand, the trial court had
disposed of the suit on merits and not on preliminary
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issue. In appeal, the first appellate court set aside the
judgment and decree of the trial court and directed
the trial court to decide the suit afresh, after giving
the parties an opportunity to let evidence, both oral
and documentary. However, the learned counsel for
the appellant submits that the remand was made for a
limited purpose. Despite the fact that the remand was
made for a limited purpose by the first appellate
court, the nature of the order passed by the first
appellate court leaves no manner of doubt for this
Court that such order was passed by the first
appellate court in exercise of its powers under Order
XLI Rule 23A of the Code. In the facts and
circumstances involved, it is very difficult to hold that
the order of remand was passed under Order XLI Rule
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23 or under Order XLI Rule 25 of the Code. Insofar as
Order XLI Rule 25 of the Code is concerned, the power
is generally invoked by the appellate court where it
holds that the trial court passed the decree omitted to
frame or try any issue or to determine any question of
fact essentially to the right decision of the suit upon
the merits.
8. In view of the above discussion, this Court is
of the view that the order of remand passed by the
first appellate court was certainly an order of remand
in exercise of its powers under Order XLI Rule 23A of
the Code.
9. Order XLIII of the Code provides for appeal
from orders. Further, Clause (u) of Order XLIII Rule 1
was amended consequent upon insertion of Order XLI
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Rule 23A with effect from 01.02.1977. The said rule
reads as under:-
"1.Appeal from orders.- An appeal shall lie
from the following orders under the
provisions of Section 104, namely:-
xxxx
xxxx
(u) an order under Rule 23 or Rule 23A of
Order XLI remanding a case, where an
appeal would lie from the decree of the
Appellate Court;"
10. As noticed, an order of remand passed under
Order XLI Rule 23A is amenable to appeal (FAO(RO))
under Order XLIII Rule 1(u) of the Code.
11. For the reasons discussed above, this Court
is of the view that this RSA is not maintainable. The
Registry shall return this RSA to the appellant for
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proper presentation in accordance with the scheme of
'the Code'.
This RSA is ordered accordingly.
Sd/-
N.ANIL KUMAR,
JUDGE
skj
13-08-2021 /True Copy/ Assistant Registrar
