Madras High Court

Arulmighu Marriamman Temple vs Arukkaniammal on 3 February, 2021

                                                                            C.M.A.No.2858 of 2015 and
                                                                               M.P.Nos.1 & 2 of 2015

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 03.02.2021

                                                         CORAM

                                   THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM

                                              C.M.A.No.2858 of 2015 and
                                                M.P.Nos.1 & 2 of 2015

                     Arulmighu Marriamman Temple,
                     Rep by its Executive Officer,
                     R.S.No.93/2,
                     Veerappanchatram, Erode Taluk.
                                                                                 ... Appellant
                                                            Vs.
                     1.Arukkaniammal

                     2.V.P.R.Thangamani

                                                                           ..Respondents
                     Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of
                     C.P.C., against the judgment and decree of the learned III Additional
                     Subordinate Judge, Erode dated 19.12.2014 passed in A.S.No.82 of
                     2014, wherein set aside the judgment and decree dated 04.01.2014
                     passed in I.A.No.725 of 2013 in O.S.No.121 of 2012 and remanded the
                     matter to the Principal District Munsif, Erode.

                                      For Appellant      : Mr.R.Parthasarathy

                                      For Respondents    : Mr.A.Sundaravadhanam for R1
                                                           Mr.Naveen kumar Murthi for R2
                                                      JUDGMENT

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2858 of 2015 and M.P.Nos.1 & 2 of 2015

The judgment and decree dated 19.12.2014 passed in A.S.No.82

of 2014, is under challenge in the present civil miscellaneous appeal.

2. The Defendant Temple is an appellant. The suit was instituted

by the respondents for mandatory injunction and for permanent

injunction. The suit was dismissed by the Trial Court. The respondents

instituted an appeal suit in A.S.No.82 of 2014 and the first Appellate

Court set aside the judgment and decree passed by the Trial Court and

remanded the matter back for reconsideration of the evidence as well as

the deposition of witnesses.

3. The ground merely raised in this appeal is that whether the

remand of the matter back to the Trial Court for fresh disposal is in

accordance with the provisions or not.

4. The learned counsel appearing on behalf of the appellant mainly

contended that the suit was contested and the Trial Court decided the

matter on merits and dismissed the plaint. However, the first Appellate

Court has committed an error in remanding the matter back instead of

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2858 of 2015 and M.P.Nos.1 & 2 of 2015

deciding the appeal suit on merits.

5. The learned counsel for the appellant further contended that the

temple land is occupied by the respondents and they are encroachers as

far as the temple lands are concerned. The respondents have further filed

a writ petition. The said writ petition was also dismissed by this Court. It

is further contended that there is a decree exist in favour of the appellant

temple which was confirmed in the second appeal by this Court. Those

judgments are also marked as document before the Trial Court, there is

no reason whatsoever to remand the matter back and the first Appellate

Court ought to have consider the judgment delivered by various Courts

for the purpose of ascertaining the rights of the parties. Thus, the appeal

is to be allowed.

6. The learned counsel appearing for the respondents states that

the first appeal already filed in respect of the other judgment and decree

is pending for a long time. The rights of the parties are unable to be

crystalized. The Trial Court dismissed the suit by rejecting the plaint and

therefore, the first Appellate Court is right in remanding the matter back

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2858 of 2015 and M.P.Nos.1 & 2 of 2015

for re-trial.

7. This Court is of the considered opinion that the Appellate Court

is empowered to remand the matter under Order 41 Rule 23 and 23(A)

of C.P.C. However, the remand is to be resorted only on exceptional

circumstances and not in a routine manner. The Appellate Court must

decide the issues on merits and in accordance with law and the appeal

suits are to be disposed of. The remand can be made only if the suits are

decided on certain preliminary issues and there was no adjudication of

all the issues as well as the documents and evidences filed by the

respective parties to the litigation. However, it is contended that the

issues regarding res judicata alone was considered. In view of the fact

that the plaint was rejected on the ground of res judicata, there is no

reason for remanding the matter for re-trial.

8. This being the point advanced by the appellant, this Court is of

the considered opinion that the first Appellate Court is well within its

powers to decide this point on merits and in accordance with law. If the

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2858 of 2015 and M.P.Nos.1 & 2 of 2015

Trial Court rejected the plaint on the ground of res judicata, then the

Appellate Court can very well appreciate the documents and evidences

and decide the matter finally instead of remanding the matter back to the

Trial Court. Rule 24 Order 41 unambiguously stipulates that the appeal

suits are to be decided finally and only on certain limited grounds, the

cases can be remanded back to the Trial Court for fresh disposal. Under

Section 107 C.P.C., the Appellate Court got powers to accept additional

documents and examine the witnesses, if necessary. The appeal suit is a

continuation and therefore, the Appellate Court has got all powers to

examine the witnesses and accept the additional documents and

conclude the appeal suit by affording opportunity to all the parties, on

merits and in accordance with law.

9. This being the power conferred on the Appellate Court under

the Code of Civil Procedure, the Appellate Courts are expected not to

remand the matter unnecessarily. Such remand undoubtedly amount to

shifting the responsibility by the Courts and it can never be appreciated

by the High Court.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2858 of 2015 and M.P.Nos.1 & 2 of 2015

10. Perusal of the findings in the judgment impugned, the same

reveals that the Trial Court has failed to consider the documents already

submitted along with the plaint and on record as Exhibit A1 to A9 in the

main suit, while deciding the petition under Order 7 Rule 1 of C.P.C.

The rejection of the plaint on the ground of res judicata ought not to

have been allowed as prayed in I.A.No.725 of 2013, before the Trial

Court. As the Trial Court had failed to rely only upon the plaint and

documents submitted along with it in allowing I.A.No.725 of 2013 and

in result dismissing the suit is not correct, as any of the grounds upon

which the plaint may be rejected as described under Order 7 Rule 11 of

CPC was not proved.

11. When the above said elaborate findings are made by the first

Appellate Court, there is no reason whatsoever to remand the matter

back for fresh disposal. Even such evidences and documents shall be re-

appreciated or revised finding can be given if the first Appellate Court

formed an independent opinion with reference to the point of res

judicata.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2858 of 2015 and M.P.Nos.1 & 2 of 2015

12. The learned counsel for the appellant cited the judgment of the

Hon'ble Supreme Court of India in the case of T.Arivanandam Vs.

T.V.Satyapal and Another, reported in 1997 4 SCC 467, the Hon'ble

Division Bench ruled as under in paragraph No.5 which is extracted

hereunder:

“5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the Court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful –not formal-- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11, C.P.C., taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X,

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2858 of 2015 and M.P.Nos.1 & 2 of 2015

C.P.C. An activist Judge is the answer to irresponsible law suits. The Trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr.XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi:

“It is dangerous to be too good.”

13. For all these reasons, this Court is of the considered opinion

that the first Appellate Court ought to have considered all the grounds

and the evidences placed by the respective parties and dispose of the

appeal suit on merits and in accordance with law. The remand without

considering the facts and circumstances seems to be inappropriate. Thus,

this Court is inclined to consider the appeal.

14. Accordingly, the judgment and decree dated 19.12.2014

passed in A.S.No.82 of 2014 is set aside. The first Appellate Court is

directed to hear the appeal suit by affording opportunity to all the

parties, if necessary, by accepting the additional documents and

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2858 of 2015 and M.P.Nos.1 & 2 of 2015

examining or cross examining the witnesses and dispose of the same on

merits and in accordance with law. The said exercise is directed to be

done by the first Appellate Court, within a period of eight months from

the date of receipt of a copy of this order. The parties to the appeal suit

are directed to not seek unnecessary adjournments on flimsy grounds.

The adjournments sought are to be granted only on genuine grounds and

by recording reasons.