Madras High Court
Ponnammal vs O.Nagappan on 1 April, 2021
C.M.A.No.2741 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.04.2021
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.No.2741 of 2017
and
C.M.P.No.15471 of 2017
Ponnammal .. Appellant
Vs.
1.O.Nagappan
2.Subbulakshmi
3.Ponnusamy .. Respondents
PRAYER : Civil Miscellaneous Appeal is filed under Order 43 rule 1(u) of
Civil Procedure Code, against the judgment and decree dated 07.03.2017
made in A.S.No.30 of 2016 on the file of the Subordinate Court,
Sathyamangalam, remanding the judgment and decree dated 25.01.2016 and
made in O.S.No.195 of 2014 on the file of the District Munsiff court,
Sathyamangalam.
For Appellant : Mr.M.Roshan Atiq
For Respondents
For R1 : M/s.T.Doraisamy
For R2 & R3 : No appearance
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C.M.A.No.2741 of 2018
JUDGMENT
The appellant herein is the 1st respondent in A.S.No.30 of 2016 /
1st defendant in O.S.No.195 of 2014 filed by the 1st respondent herein for the
relief of declaration and permanent injunction and the same was contested by
all the defendants.
2. After full trial the trial Court dismissed the suit. Aggrieved
by the said order the plaintiff has preferred an appeal in A.S.No.30 of 2016
along with an application in I.A.No.19 of 2017 under Order 41 Rule 27 of
CPC seeking permission to receive additional documents. The learned First
Appellate Judge allowed I.A.No.19 of 2017, dated 07.03.2017 and also
allowed appeal by remanding the suit to the trial Court with a direction to
permit the plaintiff to implead the necessary parties and also to amend the
plaint, and to adduce additional witness if any and to dispose of the case on
merits. Aggrieved by the said order the appellant / 1st defendant has preferred
this appeal.
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C.M.A.No.2741 of 2018
3. The question of law that arises for consideration is as to
“Whether the trial Judge was right in remanding the suit to the
trial Court for the purpose of impleading necessary parties and to
amend, and to adduce further witness under Order 41 Rule 23 of
CPC ?”
4. On a perusal of the record, it reveals that the trial Judge has
framed 6 issues and all the issues have been answered on merits. But the First
Appellate Judge, observed certain new facts and remanded the matter to the
trial Court for fresh disposal. Under Order 41 rule 23(A), speaks that a case
can be remanded and may further direct what issue or issues shall be tried in
the case so remanded. But the order of the First Appellate Judge has inferred
a new facts directing the 1st respondent / plaintiff to implead the necessary
parties which are all not covered under the issue framed by the trial Judge
while disposing the main suit.
5. As discussed above, all the issues which are framed by the
trial Court was rightly answered and none of the issues were answered
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C.M.A.No.2741 of 2018
without any findings. But the learned First appellate Judge allowed the
application permitting to allow the document, which can be considered by the
First Appellate Court itself. But the plaintiff was again given opportunity to
implead necessary parties and also to furnish additional witness without any
valid reason. The plaintiff also has not established that he took all efforts to
produce documents and witness before the trial Judge. Therefore, the order
passed by the learned First Appellate Judge is set aside as unsustainable.
6. Accordingly, the order passed by the learned First
Appellate Judge is set aside and the First Appellate Court itself is entitled to
receive additional document as per order passed in I.A.No.19 of 2017 and
directed to dispose the A.S.No.30 of 2016 within a period of Five months
from the date of receipt of a copy of the judgment. The parties are directed to
file additional documents if any, before the First Appellate Court and if such
documents are filed, the same can be decided on merits and in accordance
with law under Order 41 rule 23(A) of Civil Procedure Code.
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C.M.A.No.2741 of 2018
7. Accordingly, in view of the above, this Civil
Miscellaneous Appeal is Allowed. Consequently connected Civil
Miscellaneous petition is closed. No Costs.
01.04.2021
rri
Index : Yes/No
Speaking Order: Yes/No
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C.M.A.No.2741 of 2018
T.V.THAMILSELVI,J.
rri
C.M.A.No.2741 of 2017
and
C.M.P.No.15471 of 2017
01.04.2021
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