Kerala High Court
Vijayakumar vs Mohanlal on 1 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY, THE 1st DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
FAO (RO) NO. 6 OF 2021
AGAINST THE JUDGMENT DATED 30.06.2020 IN AS No.20/2012 OF SUB COURT,
ATTINGAL
JUDGMENT AND DECREE DATED 03.07.2009 IN O.S.No.9/2008 OF MUNSIFF
COURT, VARKALA
APPELLANT/3rd APPELLANT/4th DEFENDANT:
VIJAYAKUMAR, S/o GOPALAN, MULAVILA VEEDU,
AYIROOR DESOM, AYIROOR VILLAGE, THIRUVANANTHAPURAM
BY ADVS. GEORGE SEBASTIAN
SRI.ARUN LUCKOSE ABRAHAM
RESPONDENTS/RESPONDENTS 1 TO 12 AND APPELLANTS 2, 4 TO 6/PLAINTIFFS 1
TO 6 AND DEFENDANTS 2 AND 8, LEGAL REPRESENTATIVES OF DECEASED 1st
DEFENDANT, DEFENDANTS 3, 5 TO 7:
1 MOHANLAL, S/o GOPALAN, M.R BHAVAN, AYIROOR DESOM,
AYIROOR VILLAGE, THIRUVANANTHAPURAM, PIN-695 310.
2 SHEELA, D/o SUDHADRA, SARUN VILLA, AYIROOR DESOM,
AYIROOR VILLAGE, THIRUVANANTHAPURAM, PIN-695 310.
3 SHEEMA, D/o SUDHADRA, NARAYANALAYAM, PALAYAMKUNNU,
AYIROOR DESOM, AYIROOR VILLAGE,
THIRUVANANTHAPURAM, PIN-695 310.
4 SHEEJA, D/o SUBHADRA, MADHAVALAYAM, AYIROOR DESOM,
AYIROOR VILLAGE, THIRUVANANTHAPURAM, PIN-695 310.
5 SHEMMY, D/o SUBHADRA, MOOLAVILA VEEDU, AYIROOR DESOM,
AYIROOR VILLAGE, THIRUVANANTHAPURAM, PIN-695 310.
6 SHINI, D/o SUBHADRA, PALAYAMKUNNU PANKAJATHIL,
KOVOOR, CHEMMARUTHY VILLAGE, AYIROOR DESOM,
AYIROOR VILLAGE, THIRUVANANTHAPURAM, PIN-695 310.
FAO (RO) No.6 of 2021 2
7 KANAKA DAS, S/o GOPALAN, KANAKA MANDIRAM, AYIROOR DESOM,
AYIROOR VILLAGE, THIRUVANANTHAPURAM, PIN-695 310.
8 DEEBU, S/o SUGATHAN, VALIYAVILA VEEDU, AYIROOR DESOM,
AYIROOR VILLAGE, THIRUVANANTHAPURAM, PIN-695 310.
9 INDIRA, W/o SOMARAJAN, BINDU NIVAS, AYIROOR DESOM,
AYIROOR VILLAGE, THIRUVANANTHAPURAM, PIN-695 310.
10 BEENA, D/o SOMARAJAN, BINDU NIVAS, AYIROOR DESOM,
AYIROOR VILLAGE, THIRUVANANTHAPURAM, PIN-695 310.
11 BINI, D/o SOMARAJAN, BINDU NIVAS, AYIROOR DESOM,
AYIROOR VILLAGE, THIRUVANANTHAPURAM, PIN-695 310.
12 BINDU, D/o SOMARAJAN, BINDU NIAVS, AYIROOR DESOM,
AYIROOR VILLAGE, THIRUVANANTHAPURAM, PIN-695 310.
13 DHARMARAJAN, S/o GOPALAN, DHANYA,
OPPOSITE K.S.E.B, G.H.S ROAD, KAZHAKKUTTAM VILLAGE,
THIRUVANANTHAPURAM, PIN-695 310.
14 SANTHA SUGATHAN, W/o SUGATHAN,
VALIYAVILA VEEDU, AYIROOR DESOM, AYIROOR VILLAGE,
THIRUVANANTHAPURAM, PIN-695 310.
15 MEENA, D/o SUGATHAN, VALIYAVILA VEEDU, AYIROOR DESOM,
AYIROOR VILLAGE, THIRUVANANTHAPURAM, PIN-695 310.
16 SHEENA, D/o SUGATHAN, VALIYAVILA VEEDU, AYIROOR DESOM,
AYIROOR VILLAGE, THIRUVANANTHAPURAM, PIN-695 310.
R1-R7 & R9-R12 BY ADV SRI.PEEYUS A.KOTTAM
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR
HEARING ON 01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
FAO (RO) No.6 of 2021 3
JUDGMENT
A preliminary decree for partition with respect to the
property left out by one Nani Lekshmi, the predecessor-in-
interest of both the parties to the suit was set aside by
the first appellate court on the reason that the property
scheduled in the plaint is not the one allotted to the
share of the abovesaid Nani Lekshmi in the mother document
of partition ( Partition Deed No.2989/1966). For curing
the said defect, an amendment application, I.A.No.2/2020
was filed. But, the first appellate court by making some
observations with respect to the application of Order II
Rule 2 and Order XXIII C.P.C. etc. remanded the matter back
to the trial court.
2. The question came up for consideration is whether a
bonafide mistake crept in the schedule of property would
cause prejudice to the parties when the suit was proceeded
and defended without noticing the said mistake and whether
the first appellate court is justified in remanding the
matter, when both the parties have adduced evidence fully
knowing the actual dispute involved in the suit.
3. What is sought to be partitioned in the suit is the
property allotted to the share of Nani Lekshmi under a
mother document of partition of the year 1966. But,
instead of quoting the schedule allotted to her share, the
schedule allotted to some other person was mistakenly
entered in the plaint schedule. It was not noticed either
by the plaintiff or by the defendant, but proceeded with
the suit under the impression that it is pertaining to the
property left out by Nani Lekshmi under the partition of
the year 1966. There is no reason to cause any kind of
prejudice to the parties and no fresh evidence is required
to dispose of the appeal on merits.
4. This Court had laid down the legal position in
FAO(RO) No.14/2021 dated 24/09/2021 (given for reporting)
in the following lines:
"4. A conjoint reading of Rule 23, 23A and 24
of Order XLI C.P.C. would make it clear that
non-consideration, failure or mis-appreciation
of an issue may not be a ground to order
remand of the case, when the evidence on
record is sufficient for determination of the
issue by the appellate court. It is within the
permissibility of the first appellate court to
take up and consider every issue in dispute
and to determine the same when evidence on
record is sufficient for its adjudication,
irrespective of whether it was taken up or
answered by the trial court. In short, a
remand of the case to the trial court is not
permissible, when the evidence on record
covers the material for adjudication of every
issues involved in the suit. It is also within
the jurisdiction of the appellate court to
settle and decide any issue, which is
essential for fair determination of the
dispute involved, when evidence on record is
sufficient. The expression "evidence upon the
record is sufficient" incorporated in Rule 24
shall not be understood to cover any failure
upon the party to tender any evidence,
insufficiency of evidence or any laches
thereof so as to bring the matter within the
purview of that Rule, when the party is aware
of the dispute involved and the nature of
issues to be adjudged. Hence, a remand of the
case, either to fill up the lacuna in the
evidence or in the case set up or failure to
adduce evidence cannot be a ground of remand,
when the dispute was within the knowledge of
the parties and proceeded or defended with the
suit with that knowledge. But, when there is
denial of sufficient opportunity to adduce
evidence resulting in grave injustice to the
party, it is permissible to order remand of
the case."
Hence, the decree and judgment of the first appellate
court will stand set aside and I.A.No.2/2020 will stand
allowed. It is not at all necessary to adduce fresh
evidence after the said amendment. The parties shall appear
before the first appellate court on 20/10/2021 for fresh
disposal. The appeal is allowed accordingly. No costs.
Sd/-
P.SOMARAJAN
JUDGE
DMR/-
