A.G.Saseendranath @ Shashi Nath vs Padmini
2022 Latest Caselaw 2040 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR. JUSTICE P.SOMARAJAN
    WEDNESDAY, THE 23rd DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943
                       FAO (RO) NO. 9 OF 2020
AGAINST THE JUDGMENT DATED 19.12.2017 IN OS No. 45/2016 OF SUB COURT,
                                KOCHI
AGAINST THE JUDGMENT DATED 30.03.2019 IN AS No.29/2018 OF ADDITIONAL
                   DISTRICT COURT - VII, ERNAKULAM
APPELLANTS (RESPONDENTS/PLAINTIFFS):

1 A.G.SASEENDRANATH @ SHASHI NATH, AGED 69 YEARS, S/o GANESHA SHETTY, RESIDING AT C-701, ZINNEA, BAVDHAAN, PUNE-411021.

2 G.S.NARENDRANATH, AGED 64 YEARS, S/o GANESHA SHETTY, RESIDING AT CC.X/264, AMARAVATHY, KOCHI-682001.

3 G.S.KASINATH, AGED 56 YEARS, S/o GANESHA SHETTY, RESIDING AT C.C.X/26, AMARAVATHY, KOCHI-682001.

BY ADVS. DINESH R.SHENOY SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY

RESPONDENTS (APPELLANTS/DEFENDANTS):

1 PADMINI, AGED 52 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC.X/265, OPPOSITE KOKKERS THEATRE, AMARAVATHY, COCHIN-682002.

2 USHA, AGED 49 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC.X/265, OPPOSITE KOKKERS THEATRE, AMARAVATHY, KOCHI-682002.

3 JAYAVANTHAN, AGED 55 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC.X/265, OPPOSITE KOKKERS THEATRE,

AMARAVATHY, KOCHI-682002.

BY ADVS. SRI.SAJAN MANNALI SMT.SANTHI K.PAI SMT.V.N.SHASHIKALA SRI.AADITHYAN S.MANNALI SMT.ARATI PRAKASH SMT.ANJANA M VADHYAR SMT. ATHULYA MARTIN

SRI. SONY P.G.

THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 23.02.2022, ALONG WITH FAO (RO).10/2020, 11/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 23rd DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943 FAO (RO) NO. 10 OF 2020 AGAINST THE JUDGMENT DATED 19.12.2017 IN OS No. 45/2014 OF SUB COURT, KOCHI AGAINST THE JUDGMENT DATED 30.03.2019 IN AS No.31/2018 OF ADDITIONAL DISTRICT COURT -VII, ERNAKULAM APPELLANTS (RESPONDENTS 1 TO 7, 10 & 11/DEFENDANTS 1 TO 7, 10 & 11:

1 KASINATHAN, AGED 60 YEARS, S/o GANESHA SHETTY, RESIDING AT C.C. X/26, AMARAVATHY, KOCHI-682001.

2 NARENDRANATH, AGED 64 YEARS, S/o GANESHA SHETTY, RESIDING AT C.C. X/264, AMARAVATHY, KOCHI-682001.

3 A.G. SASEENDRANATH @ SHASHI NATH, AGED 69 YEARS, S/o GANESHA SHETTY, RESIDING AT C-701, ZINNEA, BAVDHAAN, PUNE-411021.

4 SAROJA, AGED 67 YEARS, D/o GANESHA SHETTY AND W/o MURALEEDHARAN, RESIDING AT HOUSE NO.CC X/468, AMMAN KOVIL ROAD, AMARAVATHY, KOCHI-682001.

5 CHANDRAMATHY, AGED 72 YEARS, D/o GANESHA SHETTY, W/o RAMACHANDRAN, RESIDING AT HOUSE NO. C.C.X/267, GOPALAKRISHNA TEMPLE ROAD, AMARAVATHY, KOCHI-682001.

6 INDIRA, AGED 69 YEARS, D/o GANESHA SHETTY AND W/o RAJENDRAN, RESIDING AT HOUSE NO. C.C.X/270(765), NEAR J.D. TEMPLE, AMARAVATHY, KOCHI-682001.

7 REMA BAI, AGED 60 YEARS, D/o GANESHA SHETTY AND W/o JAYACHANDRAN, RESIDING AT HOUSE NO. C.C.X/265, AMARAVATHY, KOCHI-682001.

8 SULOCHANA, AGED 76 YEARS, D/o KASHINATHA SHETTY, W/o MURALEEDHARAN, RESIDING AT HOUSE NO. CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, KOCHI-682001.

9 SURENDRAN, AGED 75 YEARS, S/o SUBADRA AND GRANDSON OF KASHINATHA SHETTY, RESIDING AT HOUSE NO. CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, KOCHI-682001.

BY ADVS. DINESH R.SHENOY SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY

RESPONDENTS (APPELLANTS & RESPONDENTS 8 & 9/DEFENDANTS 8 & 9):

1 PADMINI, AGED 52 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, KOCHI-682002.

2 USHA, AGED 49 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, KOCHI-682002.

3 JAYAVANTHANAN, AGED 57 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, KOCHI-682001.

4 KANJANA N.S., AGED 62 YEARS, D/o NARAYANA SHETTY, 33, 2nd FLOOR, SRINGANDHANAGAR, VISHWANEEDAM POST, BANGALORE-560091.

BY ADVS. SRI.SAJAN MANNALI

SRI.AADITHYAN S.MANNALI SMT.ANJANA M VADHYAR SRI. SONY P.G.

SMT.V.N.SHASHIKALA SMT. ATHULYA MARTIN SMT.ARATI PRAKASH SMT.SANTHI K.PAI

THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 23.02.2022, ALONG WITH FAO (RO).9/2020 AND 11/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 23rd DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943 FAO (RO) NO. 11 OF 2020 AGAINST THE JUDGMENT DATED 19.12.2017 IN OS No.41/2017 OF SUB COURT, KOCHI AGAINST THE JUDGMENT DATED 30.03.2019 IN AS No.32/2018 OF ADDITIONAL DISTRICT COURT - VII, ERNAKULAM APPELLANTS (RESPONDENTS/DEFENDANTS):

1 KASINATHAN SHETTY, AGED 60 YEARS, S/o GANESHA SHETTY, RESIDING AT CC X/265, AMARAVATHY, KOCHI - 682 001.

2 LATHIKA, AGED 47 YEARS, W/o KASINATHAN SHETTY, CC.X/265, OPPOSITE KOKKERS THEATRE, AMARAVATHY, COCHIN - 682 001.

3 NARENDRANATH, AGED 64 YEARS, S/o GANESHA SHETTY, RESIDING AT C.C.X/264, AMARAVATHY, COCHIN - 682 001.

4 SAROJAM, AGED 55 YEARS, W/o NARENDRANATH, RESIDING AT HOUSE NO.CC.X/265, OPPOSITE KOKKERS THEATRE, AMARAVATHY, KOCHI - 682 001.

BY ADVS. DINESH R.SHENOY SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY

RESPONDENT (APPELLANT/PLAINTIFF):

PADMINI, AGED 52 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, COCHIN - 682 002.

THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 23.02.2022, ALONG WITH FAO (RO).9/2020 AND 10/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The duty of the first appellate court is not to do any

reverse driving on flimsy ground by ordering remand without

going into the merits and demerits of the case and the

dispute involved. That is what is actually done by the

first appellate court in the instant case without adhering

to the requirement for a remand and in violation of the

mandate under Sections 23, 23A and 24 of Order XLI C.P.C.

The legal position has been settled by this Court in

Gopalakrishnan and Another v. Ponnappan and Others [2021

(5) KHC 548].

2. It is on an extraneous ground a remand of the

matter was ordered without going into the merits and

demerits of the adjudication rendered by the trial court

and the decree and judgment were set aside for the said

purpose. The first appellate court has committed a grave

error in ordering remand of the matter, that too, by taking

into consideration a document which was filed under Order

XLI Rule 27 C.P.C. i.e. a death certificate of one

Kasinathan Shetty who passed away as early as on 25/07/1960

and went on considering the same based on the age of the

deceased entered in that document and found that at the

time of acquisition of right over immovable property, he

was only a minor. The first appellate court did not

understand the evidentiary value of a death certificate.

Further, it is not discussed anywhere in the judgment

whether it would come under the purview of Order XLI Rule

27 C.P.C. In fact, no sufficient reason was brought out to

receive additional documents in the first appellate stage.

No sufficient reason was also brought out why it was not

produced at the trial stage. In fact, the said document

has no much relevance regarding the age as entered in the

document since it was not intended to record the age of the

deceased. Hence, all the discussions made in that behalf by

the first appellate court is highly extraneous and

unwarranted.

3. The age as that of the deceased who died as early as

on 25/07/1960 in the death certificate may not get any

relevance and evidentiary value except to the extent of

proving the identity of the deceased and the date of death.

When it is related to the year 1960, it is too cumbersome

to rely on such entry especially when it is not intended to

record such entry. The basic principles governing

acceptability of the evidence has been overlooked by the

first appellate court. Hence, the order of remand is liable

to be set aside. I do so. The matter is remanded back to

the first appellate court for fresh disposal by attending

all the disputes involved in the matter, for which the

parties shall appear before that court on 03/03/2022. The

first appellate court shall dispose of the matter within

two weeks positively from the date of appearance and report

compliance.

All the appeals will stand allowed accordingly. No

costs.

Sd/-

P.SOMARAJAN JUDGE DMR/-