Madras High Court
Sethupillai vs Chinnasamy Konar on 16 December, 2021
CMA.No.2685 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
CMA No.2685 of 2021 and
CMP.No.15430 of 2021
Sethupillai ... Appellant
Vs
Chinnasamy Konar ... Respondent
Prayer: This Civil Miscellaneous Appeal filed under Order XLIII Rule 1(u)
of he Civil Procedure Code, against the Judgment and Decree dated
04.02.2020 passed by the Subordinate Judge, Kallakurichi in A.S.No.100 of
2015 reversing the Judgment and Decree dated 04.09.2015 made in
O.S.No.509 of 2011 by the 1st Additional District Munsif, Kallakurichi.
For Appellant : Mr.J.Haiharan
For Respondent : Mrs.R.Meenal
JUDGMENT
The defendant in O.S.No.509 of 2011 is the appellant. This appeal
is against the order of remand made by the appellate Court. The plaintiff
filed a suit for declaration that he is the absolute owner of the suit property
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CMA.No.2685 of 2021
which is a well and for consequential injunction. The suit was resisted by the
defendant contending that the suit well belonged to three brothers and the
plaintiff as well as the defendant are descendants of one of the brothers
namely, Narayanan. Claiming that there were some release deeds executed
by the other sharers, the defendant contended that the plaintiff and the
defendant are each entitled to half share in the suit well. The trial Court on
consideration of the evidence on record concluded that the plaintiff has not
made out a case for declaration of title and dismissed the suit. Aggrieved
over the same, the plaintiff preferred an appeal in A.S.No.100 of 2015.
Pending appeal, the plaintiff wanted to introduce a document which is an
exchange deed dated 06.11.2002 as additional evidence.
2.It appears that during the course of the arguments, the learned
counsel appearing for the appellant had contended that since the defendant
had admitted the plaintiff's half share, the whole sale dismissal of the suit is
incorrect and the trial Court must have atleast granted the relief with
reference to the half share. The lower appellate Court concluded that the
relief of declaration cannot be granted solely based on the admission made
by the defendant and the plaintiff will have to make out the case. It also felt
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CMA.No.2685 of 2021
that an opportunity should be given to the plaintiff to establish the said
claim. The Court also dismissed the application in I.A.No.102 of 2019 filed
for producing additional evidence in the appellate Court. The appellate Court
remitted the matter to the trial Court for fresh consideration by framing
appropriate issues.
3.Mr.J.Hariharan, learned counsel appearing for the appellant
would contend that the conclusions of the lower Appellate Court and the
remand made cannot be sustained. According to the learned counsel, the
lower Appellate Court must have considered the evidence independently and
should have come to the conclusion whether the plaintiff had established his
claim of exclusive title or not.
4.The learned counsel would make an alternative submission that
it was open to the appellate Court to declare the title of the plaintiff with
reference to half share, which is admitted by the defendant, if the appellate
Court finds that the plaintiff has made out such a case. A remand is wholly
unnecessary.
5.Mrs.Meenal, learned counsel appearing for the respondent
would submit that the lower appellate Court has rejected the application in
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CMA.No.2685 of 2021
I.A.No.102 of 2019 only because it was making an order of remand it has
permitted the appellant in the appeal to produce the document before the
trial Court. It has also permitted further evidence to be let in and therefore, if
the order of remand is set aside, it will cause serious prejudice to the
respondent herein.
6.I have considered the rival submission.
7.Considering the nature of controversy, I do not think that the
remand order could be sustained. A remand can be made in certain
circumstances under Order 41 Rule 23. The power of remand under Order
41 Rule 23 is confined to cases were the trial Court has disposed of the suit
on a preliminary point. The appellate Court can also make an order of
remand in other cases, if it falls under Order 23A. In order to invoke Order
41 Rule 23A, the appellate Court must reverse the judgment and decree of
the trial Court and must also come to the conclusion that a re-trial is
necessary. The appellate Court has not reversed the judgment of the trial
Court and it has not come to the conclusion that a re-trial is necessary. The
appellate Court has merely said that the decree cannot be granted on the
basis of the admission and in order to avoid future litigation between the
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CMA.No.2685 of 2021
parties, there should be a remand and the plaintiff should be allowed to
amend the plaint. I do not think such an approach could be sustained. In the
absence of compliance with Rule 23A, the remand order cannot be
sustained. Therefore, the order of remand is set aside, the I.A.No.102 of
2019 is restored, the appellate Court is directed to dispose of the appeal and
I.A.No.102 of 2019 on merits in accordance with law. This Civil
Miscellaneous Appeal is allowed. No costs. Consequently, the connected
miscellaneous petition is closed.
16.12.2021
vs
Index: No
Speaking order
To
1.The Subordinate Judge,
Kallakurichi.
2.The 1st Additional District Munsif,
Kallakurichi
3.The Section Officer,
VR Section,
Madras High Court, Chennai.
https://www.mhc.tn.gov.in/judis
CMA.No.2685 of 2021
R.SUBRAMANIAN, J.
vs
CMA No.2685 of 2021 and
CMP.No.15430 of 2021
16.12.2021
https://www.mhc.tn.gov.in/judis
