Kerala High Court

Latha Suresh Babu vs K.Manoharan on 7 February, 2025

                                                             2025:KER:8704

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

         FRIDAY, THE 7TH DAY OF FEBRUARY 2025 / 18TH MAGHA, 1946

                           RFA NO. 195 OF 2010

AGAINST THE DECREE AND JUDGMENT DATED 30.10.2009 IN O.S. NO.7 OF 2006 ON

       THE FILES OF THE COURT OF THE SUBORDINATE JUDGE, PAYYANNUR


APPELLANT/DEFENDANT:

           LATHA SURESH BABU, W/O SURESH BABU,
           THUNOLI HOUSE, MADAYACHAL, BAKKALAM, MORAZHA AMSOM AND
           KONOOL DESOM, KANNUR DISTRICT.


           BY ADVS.
           MINI M.R.
           VINOD RAVINDRANATH(K/001479/1999)
           MEENA.A.(K/001814/1995)
           K.C.KIRAN(K/621/2006)
           M.DEVESH(K/1253/2012)
           ASHWIN SATHYANATH(K/001035/2016)
           ANISH ANTONY ANATHAZHATH(K/000106/2019)
           THAREEQ ANVER K.(K/000942/2018)
           T.KRISHNANUNNI (SR.)(K/280/1973)



RESPONDENT/PLAINTIFF:

           K.MANOHARAN, S/O BALAN,
           BUSINESS, P.O.KOTTILA, KANNUR DISTRICT.


           BY ADV SRI.O.V.MANIPRASAD


     THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20.01.2025,
THE COURT ON 07.02.2025 DELIVERED THE FOLLOWING:
                                                                  2025:KER:8704
R.F.A. No. 195 of 2010
                                        2


                                                                "C.R."

                                 JUDGMENT

Dated this the 7th day of February, 2025

This regular first appeal has been filed under

Section 96 read with Order XLI Rule 1 of the Code of Civil

Procedure, 1908, challenging the decree and judgment

dated 30.10.2009 in O.S. No.7/2006 on the files of the Court

of the Subordinate Judge, Payyannur. The appellant herein

is the defendant and the respondent herein is the plaintiff.

2. Heard the learned counsel for the appellant and

the learned counsel appearing for the respondent. Perused

the verdict under challenge and the records of the trial court.

3. Parties in this appeal shall be referred as "plaintiff"

and "defendant" with reference to their status before the

trial court.

4. According to the plaintiff, the defendant and her

husband, Sri.Suresh Babu, approached the plaintiff at his

residence in the month of January, 2005 and borrowed an

amount of Rs.3,00,000/- in connection with the construction 2025:KER:8704

of their house. Further case of the plaintiff is that, the

defendant promised to repay the amount within four

months and accordingly cheque dated 31.05.2005 drawn

on Ex-Service Co-operative Bank, Pazhayangadi was issued

in discharge of the said liability. According to the plaintiff,

though the cheque was accepted and presented for

collection, the same got dishonored for insufficient fund.

Though, legal notice of demand was issued to the

defendant intimating the dishonor of the cheque, the

defendant sent a false reply notice, without repaying the

amount.

4. The defendant appeared and filed written

statement. The main contentions raised by the defendant

which would appear in paragraph Nos. 3 and 5 of the

written statement are extracted as under:

"3. It is humbly submitted that, the defendant has not executed any promissory note infavour of the plaintiff as alleged in the plaint. Infact this defendant is in receipt of a copy of plaint from this Hon'ble court in which the plaintiff has alleged that, the above suit is based on a cheque issued by the defendant. This defendant would like to submit that. the plaintiff is a total 2025:KER:8704

stranger to the defendant and as such the defendant had no occassion to execute any instrument in his favour. The documents, if any, produced along with the plaint projecting the same as 'cheque' or promissory note must be a concocted document. As such, the plaintiff is not entitled to get any decree on the basis of the said document.

xxx xxx xxx

5. It is submitted that, one M.V.Vijayakumar, being a co-worker and the family friend of the husband of this defendant, used to visit the residence of the defendant, and had developed a close connection and intimacy with the other family members of the defendant. Later stage, there was some disputes between the husband of this defendant and one P.Kunhiraman, who is the uncle of the said Vijayakumar. The abovesaid P. Kunhiraman was the surety of respondent's husband before K.S.F.E, Kannur branch for availing a loan in the name of respondent's husband. Some default was committed by the defendant's husband in payment of the loan amount. Inspite of giving sufficient security for the payment of the loan amount, the above said Kunhiraman started making unwanted demands. Lastly, the defendant's husband transferred the undivided interest in his ancestral property, to Kunhiraman on the condition that the same will be reconveyed to the defendant's husband on satisfaction of the 2025:KER:8704

loan amount to K.S.F.E. The defendant's husband repaid the loan amount and after that, demanded for reconveyance of the property. But the above said Kunhiraman refused to hand over the property, as promised. His intention was to put the defendant's husband under pressure and extract some amount. It is also submitted that, the above said Kunhiraman and the plaintiff herein, at the behest of M.V.Vijayakumar and one K.V. Manojkumar, conspired together to make use of the good relationship between the defendant's husband and M.V.Vijayakumar and attempted to compel the defendant's husband to pay some more amount. As such, the above said M.V.Vijayakumar committed theft of blank cheque books of this defendant and her husband and the same was handed over to the said K.V.Manojkumar. Thereafter the abovesaid persons, including the plaintiff herein, manipulated the said cheque leaves by forging the signatures of this defendant and her husband."

5. On the above pleadings, the trial court raised

necessary issues and tried the matter. PW1 examined and

Exts.A1 to A11 marked on the side of the plaintiff. No oral

evidence let in by the defendant. Exts.B1 to B7 marked on

the side of the defendant.

6. On anxious consideration of the evidence 2025:KER:8704

tendered, the learned Sub Judge granted decree as under:

1. Suit is decreed.

2. Plaintiff is allowed to realise an amount of Rs.3,00,000/- from the defendant and her assets with interest at the rate of 12% per annum from the date of suit till the date of decree and thereafter with interest at the rate of 6% per annum till realisation.

3. Plaintiff is also allowed to realise the costs of the suit from the defendant.

7. The learned senior counsel appearing for the

defendant/appellant argued that, in the instant case, the

entire finding of the trial court is relying on the ratio of the

decision of this Court in Mohammed v. Velayudhan &

Another, reported in [2001 (1) KLT 392]. In

Mohammed's case (supra) this Court held in paragraph

Nos. 8 and 9 as under:

"8. During the discussion of this case, we found three types of cases: (1) When defendants merely submitted that signed papers were entrusted to a person and those papers were made use of for the purpose of executing an agreement. (2) The signed papers were given on the understanding that a particular document will be made. But contrary to that assurance, a different document was fabricated.

2025:KER:8704

(3) There are third sets of cases where the defendants even though have signed the documents, never intended to bring it in force. The Patna High Court while taking the view that presumption cannot be in favour of the plaintiff held that presumption under S.114 of the Evidence Act and the illustrations given there "are based on long experience and have been drawn so often by judges in England as well as in this country that many of them have come to be regarded almost as rules of law. The same however cannot be said with regard to the presumption, which we are asked to draw in this case considering that it is not too uncommon in this country for ignorant people to put their thumb impression on blank pieces of paper". Further, it was held that S.114 is a permissive and not a mandatory section and the court may, having regard to the circumstances of a particular case, refuse to raise a presumption in that cases such a presumption may be properly raised. On the other hand, the Nagpur High Court took the view that if nothing else is known then the mere fact that a document is proved to bear a certain signature and that it comes from proper custody ought to be enough to raise an inference that it was signed with the intention of execution. In our opinion, this inference arises in India directly from S.114 of the Evidence Act.

9. To sign means to affix the signature. But when it comes to the signing of a written instrument, it implies more than the act of affixing a signature. It 2025:KER:8704

implies more than the clerical act of writing the name. The intention of the person signing is important. The person should have affixed the signature to the instrument in token of an intention to be bound by its conditions. It has been said that for a signing consists of both the act of writing a person's name and the intention in doing this to execute, authenticate or to sign as a witness. The execution of a deed or other instrument includes the performance of all acts which may be necessary to render it complete as a deed or an instrument importing the intended obligation of every act required to give the instrument validity, or to carry it into effect or to give it the forms required to render it valid. Thus, the signature is an acknowledgement that the person signing has agreed to the terms of the document. This can be achieved only if a person signs after the document is prepared and the terms are known to the person signing. In that view of the matter, mere putting of signature cannot be said to be execution of the document."

8. According to the learned senior counsel for the

defendant, in this matter, the specific contention raised by

the defendant before the trial court was that she did not

receive, execute or sign the cheque marked as Ext.A1 in

question and further, the certified copy of the cheque alone

was marked. According to him, the original of the cheque, 2025:KER:8704

which was produced before the Judicial First Class

Magistrate Court, Payyannur, was sent to expert opinion at

the instance of the defendant, who is the accused therein,

and in the report, it was found that the signature in the

cheque was not put by the defendant, after comparing the

standard and specimen signatures forwarded for

comparison.

9. The learned senior counsel for the defendant

argued further that, in this matter, the trial court had given

emphasis to Ext.A6 and A8 notices issued by the

defendant, where the defendant took contention that " at

about 08.00 pm on 19.07.2005, the plaintiff telephoned

and threatened her stating that, some of her signed papers

are with him and it would be used against her, if the

litigation between the husband and one Mr. Parayil

Kunhiraman would not be settled". Further, it was averred

by the defendant in the notice that, "Sri. Vijayakumar, who

is a colleague of her husband, had free access to their

house and when the relationship between Sri.Vijayakuar

and her husband was strained, Sri.Vijayakumar had taken

away some of her singed papers and of her husband, 2025:KER:8704

including signed cheque leaves and he has forged some of

these cheques and used through his own brother in law and

through his father's brother, Sri.Kunhiraman" . It is averred

further that, "still some papers are with Sri.Vijayakumar. As

stated during the telephone call on 19.07.2005, it was

understood that the plaintiff was attempting to make use of

some signed papers and cheque leaves at the hands of

Sri.Vijayakumar to convert some valuable security" .

10. It is pointed out by the learned senior counsel

further that, since the defendant had not entered into the

witness box for adducing evidence, in tune with the ratio

laid down by the Apex Court in Vidyadhar v. Mankik Rao,

reported in [AIR 1999 SC 1441], the trial court observed

in paragraph No.16 of the judgment that, the case put up

by the defendant is false. But, the trial court failed to

evaluate the evidence let in by the defendant in the form of

documentary evidence and held that the plaintiff issued

Ext.A1 cheque for the consideration as stated in the plaint.

Accordingly, the learned counsel for the defendant pressed

for remand of this matter, to provide an opportunity to the

defendant to adduce evidence in support of her 2025:KER:8704

contentions.

11. The learned counsel for the plaintiff supported

the verdict of the trial court and given much emphasis to

the evidence of PW1 and also Exts.A6 and A8 notices

issued by the defendant to the plaintiff, where the

contention was that there was dispute between the

husband of the defendant and one Kunhiraman, who is

none other than the uncle of Sri.Vijayakumar and the said

Kunhiraman stood as a surety to her husband for availing a

loan from the Kerala State Financial Enterprises, Kannur

Branch and he had repaid the amount, as her husband had

defaulted in repaying the amount. In order to discharge the

liability, the husband of the defendant transferred his

undivided right in the ancestral property in favour of

Sir.Kunhiraman, on condition that the same would be

reconveyed in favour of him, on repayment of the said

amount. Anyhow, Sri.Kunhiraman refused reconveyance of

the property as agreed and the case of the defendant is

that Sri.Vijayakumar had stolen the present cheque which

was not signed, and misused the same for the purpose of

this case. The learned counsel for the plaintiff submitted 2025:KER:8704

further that, after the production of the cheque before the

Magistrate Court in a criminal case filed by the plaintiff

herein against the defendant, the defendant had disputed

her signature and accordingly the same was sent to get

expert opinion. That apart, in the written statement also,

the specific contention pleaded by the defendant is to the

effect that the signature in the cheque was not put by her.

12. In view of the rival arguments, the questions

arise for consideration are:

1. Whether the plaintiff proved the transaction led to execution of Ext.A1, so as to get the suit amount, as claimed?

2. Whether the trial court went wrong in holding that the plaintiff proved Ext.A1 and the defendant's case is contrary, to be acted upon, so as to grant the decree?

3. Whether the verdict impugned requires interference?

4. Reliefs and costs.

13. Coming to the case put up by the plaintiff before

the trial court, it was contended that, the defendant and

her husband Sri.Suresh Babu had approached the plaintiff

at his residence, in the month of January, 2005 and 2025:KER:8704

borrowed an amount of Rs.3,00,000/- for their house

construction on undertaking to repay the same and issued

a cheque dated 31.05.2005 drawn on Ex-Service Co-

operative Bank, Pazhayangadi and the same got dishonored

for want of funds. On the other hand, the defendant

emphatically denied the transaction, issuance as well as

the signature in the cheque.

14. The learned counsel for the plaintiff placed

decision of this Court in Deepak S. v. State of Kerala,

reported in [2024 KHC 109 : 2024 KHC OnLine 109 :

2024 KER 11119] to contend that, the courts have power

to ignore opinion evidence, if the same is against the

substantive evidence and also the courts have power to

compare the disputed signatures and the admitted

signatures in view of Section 73 of the Evidence Act,

following the ratio held by the Apex Court in the decision in

Ajitsinh Chehuji Rathod v. State of Gujarat and

Another, reported in [(2024) 4 SCC 453 : AIR 2024 SC

787 : 2024 INSC 63]. This argument is mooted, in

response to an argument tendered by the learned counsel

for the defendant referring the observations in paragraph 2025:KER:8704

No.12 of the judgment, whereby the learned Sub Judge

compared the signatures in the photocopy of Ext.A1 with

that of the admitted signatures and came to the conclusion

that the signatures seen in Ext.A1 cheque resembles in all

material particulars with that of the signatures in the

written statement and in the vakalath.

15. In this matter, in order to prove the transaction

which led to execution of Ext.A1 cheque, original of which

was produced before the Judicial First Class Magistrate

Court, Payyannur, PW1 filed chief affidavit and reiterated

the averments in the plaint and affirmed the same. Exts.A1

to A11 also tendered in evidence through him. During

cross-examination, when a question was asked to the effect

that whether the cheque was presented for collection after

getting advocate notice issued by the defendant alleging

that the plaintiff was attempting to institute legal

proceedings by using stolen cheques and documents, PW1

denied the same.

16. In the instant case, Ext.A1 cheque got dishonored

on 01.08.2005 and on 02.08.2005 Ext.A3 demand notice

was issued, for which the defendant issued Ext.A8 reply 2025:KER:8704

notice. During cross-examination of PW1, a suggestion was

made by the counsel for the defendant denying the

transaction as well as issuance of cheque and the signature

therein, but, PW1 denied the said suggestion and asserted

that the defendant issued Ext.A1 cheque towards payment

of the amount borrowed by her and her husband from the

plaintiff. In fact, the defendant did not mount the box to

give evidence in support of her contentions. Therefore, the

trial court took adverse inference against the defendant

following the ratio in Vidyadhar's case (supra).

17. In a suit for money based on cheque, no doubt an

initial burden is cast upon the plaintiff to prove the

transaction, led to execution of the cheque. In such a suit, if

the transaction leading to the issuance of the cheque is

admitted or the same is proved, then the plaintiff would get

the benefit of presumptions under Sections 118 (a) to (g)

of the Negotiable Instruments Act, 1881 [hereinafter

referred as 'NI Act' for short]. Similarly, in a criminal

prosecution for the offence under Section 138 of the NI Act,

the complainant would get the benefit of presumption

under Section 139 of the NI Act, on proving the transaction 2025:KER:8704

led to execution of the cheque.

18. But, the presumptions are rebuttable and for

which the defendant can rely on the evidence already

adduced by the plaintiff and can also adduce independent

evidence. Here, the question that arises for consideration

is, whether the plaintiff discharged his initial burden in the

matter of proving the transaction, which led to execution of

the Ext.A1 cheque?

19. In the instant case, during cross-examination,

nothing was extracted to disbelieve the version of PW1,

apart from making suggestions regarding the defendant's

case, which were denied by plaintiff. It is true that, in

Ext.A6 notice, the contention raised by the defendant was

that, Sri.Vijayakumar had stolen away some of her blank

signed papers and signed blank cheques and that the

plaintiff was attempting to proceed against the defendant

by using the said documents. Then, on receipt of Ext.A3

demand notice issued by the plaintiff, the defendant sent

Ext.A8 reply notice and reiterated the contentions in

Ext.A6. So, as per Exts.A6 and A8, the case of the

defendant was misuse of blank signed papers and signed 2025:KER:8704

cheques at the instance of the plaintiff, which according to

the defendant were stolen away by Sri.Vijayakumar. As

observed by the trial court, even though the defendant has

a case that Sri.Vijayakumar stolen away her signed papers

and signed blank cheques, no complaint was lodged in this

regard. Though, at a later stage a criminal complaint was

lodged before the Judicial First Class Magistrate Court,

Payyannur, the same was dismissed by the learned

Magistrate Court as per Ext.A7 order in C.M.P.

No.5523/2005.

20. In this matter, the trial court discussed at length,

adverting to the contentions raised by the defendant, after

holding that the plaintiff proved the execution of Ext.A1

cheque. In fact, on finding that the plaintiff proved Ext.A1,

the only point to be addressed by the court is to see, in any

way, presumptions under Section 118 (a) to (g) of the NI

Act were rebutted. In the instant case, as rightly found by

the trial court, the defendant did not mount the box, rather

tendered Exts.B1 to B7 in the form of documentary

evidence.

21. On reappreciation of the available evidence, the 2025:KER:8704

case of the plaintiff as to borrowing of Rs.3,00,000/- during

the month of January, 2005, by the defendant and

consequential issuance of Ext.A1 cheque dated 31.05.2005,

were proved by the evidence of PW1, since the substantive

evidence given by PW1 in this regard was not shaken. The

defendant, in fact, had inconsistent contentions. That is to

say, before filing the written statement, when Exts.A6 and

A8 notices were issued, the case of the defendant was that

the plaintiff was attempting to misuse the blank signed

papers and blank signed cheques of the defendant, stolen

away by Sri.Vijayakumar. But, thereafter in the the written

statement even the signature in the cheque was also

denied.

22. It is the well settled law that, when a fact is

disputed, the evidence to prove the same is substantive

evidence, though corroborative evidence also can be

adduced to support the substantive evidence. Indubitably,

corroborative evidence will not stand unless there is no

substantive evidence. In the instant case, the substantive

evidence as that of the plaintiff in the matter of transaction,

which led to execution of Ext.A1 cheque was not shaken 2025:KER:8704

during cross-examination. Therefore, presumptions under

Section 118 (a) to (g) of the NI Act is to be adjudged in

favour of the plaintiff. The inconsistent case put up by the

defendant is not supported by even remote piece of

evidence and therefore the said case not at all established,

inturn the presumptions in favour of the plaintiff not

rebutted. In such view of the matter, the trial court rightly

granted decree. In fact, the said verdict does not require

any interference.

23. Regarding the remand plea at the instance of the

learned counsel for the defendant, in the decision in

Manakkatt Mohammed Niyas v. Methukayil Veettil

Ummer reported in [2025 KHC OnLine 13 : 2025 KER

286 : 2025 KLT OnLine 1021], this Court held as under:

16. Before concluding the finding on point No.1, it is inevitable to address the argument tendered by the plaintiff seeking a remand of this matter so as to facilitate examination of the attesting witnesses in Ext.A1, and also the scribe who had written the same. Inasmuch as the remand of a case is concerned, Section 107(1)(b) of the Code of Civil Procedure (for short, 'the CPC' hereinafter) empowers an appellate court to 2025:KER:8704

remand a case, as dealt in Order XLI Rules 23, 23A and 25 of the CPC. The same read 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, the Appellate Court may, if it thinks fit, 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 of its judgment and order to the Court from whose decree the appeal is preferred, which 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 to the Appellate 2025:KER:8704

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.

17. Thus, power vested in an appellate court under Order XLI Rule 25 of the CPC can be exercised if the court finds that the trial court has omitted to frame or try any issue, or to determine any question of fact, which is essential to the right decision of the suit upon merits. In such cases, the appellate court may, if necessary, frame issues and refer the same to the court from whose decree the appeal has been preferred, and in such event, after taking additional evidence as directed by the appellate court, the trial court would return the evidence of the appellate court together with its finding thereon. Before the introduction of Rule 23A of Order XLI of the CPC as on 1.2.1977, the power of the appellate court to remand a case was available in a case which was decided on a preliminary point. However, in view of Order XLI Rule 23A of the CPC, power to remand a matter has been enhanced exhaustively and thereby, even in a 2025:KER:8704

case which was not decided on a preliminary point when the appellate court finds that there are valid reasons warranting a re-trial, the appellate court can remand the matter.

18. In the decision in Purushotham Reddy and Another v. M/s.Pratap Steels Ltd., reported in [2002 KHC 1159 : AIR 2002 SC 771 : 2002 (2) SCC 686], the Apex Court held that an Appellate Court should be circumspect in ordering a remand when the case is not covered either by R.23 or 23A or R.25 of Order XLI of the Code. An unwarranted order of remand gives the litigant an undeserved lease of life and therefore must be avoided. It is therefore clear that an appellate Judge should possess the ability and wisdom to foresee the difficulties and prejudices that is likely to be suffered by a party, who will be compelled to fight another round of litigation in an inferior Court. Remand of a case shall be made only when compelling legal grounds exist and it becomes necessary to do complete justice between the parties.

19. Thus, the power of remand can be exercised in a case where the trial court has disposed of the suit on a preliminary issue. An issue is to be termed as preliminary issue, if decision of the said issue is sufficient to dispose of the whole suit without the necessity of decision on other issues. Such preliminary issue may be one of fact or law, but the decision thereon must have avoided 2025:KER:8704

the necessity for a full hearing of the suit. No remand can be ordered by the appellate court under Rule 23 of Order XLI of the CPC, unless the decision of the lower court on the preliminary issue is reversed in appeal. Remanding a case is the discretion of the appellate court and the appellate court shall exercise the discretion within strict parameters. As a general rule, if appellate court can do complete justice on the basis of the record before it, the appellate court must not remand the case as it will entail more time and money of the litigants. A remand order may be proper in the cases of irregular, illegal or defective proceedings before the lower court and where vital or essential points have been ignored or not touched upon. A remand order should be carefully passed. An appellate court should decide matters finally instead of remanding the cases, unless there is a chance of miscarriage of justice. In the event that oral and documentary evidence is already on record and the parties had satisfactorily availed the opportunity of leading evidence, the case must be decided by the appellate court and should not be remanded. Where evidence on record was sufficient for appellate court to decide the matter itself, remand could not be ordered and discretionary power was to be used only in exceptional situation. Only those cases could be remanded which could not be decided on the basis of available material on record. If the controversy could be resolved on the 2025:KER:8704

basis of available evidence, then the question of remand would not arise. Where an amendment in pleadings is of essence for settling the controversy and the amendment sought for is denied by the trial court, it is not a "proper trial". Likewise, non- framing of an essential issue makes it mandatory on the appellate court to frame the issue itself and to decide the case by the appellate court. No case can be remanded enabling a party to produce additional evidence unless proper opportunity was not afforded or denied to such party to lead evidence. Thus, an order of remand has to be made when the contingencies mentioned in Rules 23, 23A and 25 of Order XLI of the CPC, are available.

20. In the decision in Heinz India Pvt. Ltd and Another v. State of Uttar Pradesh and Others reported in [2012 KHC 4190 : 2012 (5) SCC 443 : 2012 (2) KLT SN 64], it was held in paragraph No.83 as under:

"So also, no remand ought to be made only to enable a party to produce additional material. A remand is neither mechanical nor a routine affair. If there is nothing wrong in the orders under challenge, there is no question of interference with the same. There is no reason for this Court to set the clock back and start a process which would take the parties another decade or so to come to terms with the problem."

21. In the decision in Hameed and Others v. Kummottummal Kunhi P.P.Amma reported in 2025:KER:8704

[(2007) 15 SCC 155], it was held in paragraph No.10 as under:

"It is seen from the judgment passed by the Trial Court that apart from Exts. A1 and A2, which are the copies of adangal registers, no other documents are produced by the plaintiffs to show that they or their predecessors have got title to the plaint schedule property. This apart, the plaintiff was given sufficient opportunity to produce the documents. In spite of opportunity, no other documents were filed and in the circumstances, we are of the opinion that the High Court should not have remanded the matter with liberty to produce documents in order to fill lacuna in the evidence."

Therefore, there cannot be a remand merely for the purpose of a remand, and such a view cannot be exercised unduly and unreasonably. The Courts are not expected to set the clock back to the starting stage by driving the parties again to start afresh the matter unnecessarily, so as to drive them to further decades to get the matter settled. A remand is akin to compelling a person who completed graduation to start afresh from LKG and go through all classes prior to graduation and to suffer the ordeals repeatedly. Therefore, remand should not be used as a weapon for easy disposal of appeals unless the reasons espoused hereinabove have been established. A remand cannot be made merely for the purpose of enabling a party to fill up the lacuna in the evidence.

2025:KER:8704

24. In view of the above, remand cannot be made

merely for the purpose of enabling a party to fill up the

lacuna in the evidence. Accordingly, the remand plea at the

instance of the learned counsel for the defendant also is

liable to fail.

25. In the result, the appeal stands dismissed and

the verdict under challenge stands confirmed. Considering

the nature of the case, there is no reason to disallow the

cost of this proceedings to the plaintiff/respondent.

Accordingly, cost of the plaintiff/respondent in this appeal

also is allowed to be recovered from the