Saraswathi vs Devaki
2021 Latest Caselaw 3949 Mad

                                                                              C.M.A.No.579 of 2018

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 17.02.2021

                                                       CORAM

                            THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                                C.M.A.No.579 of 2018
                                                        and
                                                C.M.P.No.5101 of 2018

                     Saraswathi                                                  ..Appellant
                                                         Vs.

                     1.Devaki
                     2.The Divisional Railway Manager,
                       Southern Railway,
                       Trichirapalli.                                          ..Respondents

                     Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of
                     the Code of Civil Procedure, against the order of remand in the
                     judgment and decree in A.S.No.120 of 2008 dated 24.2.2018 on the file
                     of the learned 1st Additional Subordinate Judge, Villupuram, setting
                     aside the judgment and decree dated 27.04.2005 in O.S.No.139 of 2004
                     on the file of the learned Additional District Munsif, Villupuram.


                                      For Appellant    : Mr.N.Suresh

                                      For Respondent   : R1 – M/s.R.Meenal
                                                         R2 – Mr.M.Vijay Anand




https://www.mhc.tn.gov.in/judis/




                     1/13
                                                                                   C.M.A.No.579 of 2018

                                                    JUDGMENT

The appellant instituted a suit in O.S.No.139 of 2004 with a

prayer to

a) To Declare that the petitioner/plaintiff is an indigent person;

b) To Declare that the petitioner/plaintiff is entitled to receive the

family pension of the deceased Natarajan who worked as C & W Fitter

at Villupuram under TM 282-CWS/VM;

c) To Direct the 2nd respondent / defendant to pay the family

pension of the deceased Natarajan to the plaintiff from the date of the

death of the said Natarajan;

d) To Direct the 1st respondent / defendant to pay a sum of

Rs.54,000/- to the plaintiff.

e) To Direct the respondents/defendants to pay the costs of the

suit; and

f) To Grant such other relief as the Hon'ble Court may deem fit in

the circumstances of the case.

2. The learned counsel for the appellant contended that even in a

Maintenance case filed by the appellant against her late husband, it was

decided that the appellant is the legally wedded wife of the deceased https://www.mhc.tn.gov.in/judis/

Railway employee Natarajan. That is the reason why, the relief of

C.M.A.No.579 of 2018

declaration to declare the marriage as valid has not been sought for in

the plaint filed in O.S.No.139 of 2004. The learned counsel for the

appellant has stated that no such declaration is necessary, in view of the

maintenance petition already filed. However, the fact remains that

declaration to declare the marriage between the appellant and the

deceased Natarajan as valid has not been sought for. The entire relief

sought for in O.S.No.139 of 2004 relates to grant of family pension

under the Railway Pension Rules.

3. As far as the Railway Pension Rules is concerned, there is an

express bar under Section 9 of the Code of Civil Procedure to entertain a

Civil Suit. The Administrative Tribunals Act categorically enumerates

that Service Matters including pension disputes are to be resolved

through Central Administrative Tribunal as far as the Indian Railways

are concerned. Thus, there is an express bar for the Civil Courts to

entertain a suit with reference to the grievances under the Railway

Pension Rules. Instead of filing an application before the Central

Administrative Tribunal, the appellant has chosen to file a Civil Suit in

O.S.No.139 of 2004. However, the suit was entertained by the trial

Court and an exparte decree was passed. Challenging the said judgment https://www.mhc.tn.gov.in/judis/

and decree, the 1st respondent, who also claims as the legally wedded

C.M.A.No.579 of 2018

wife of the Railway employee deceased Natarajan, filed Appeal Suit in

A.S.No.120 of 2008 and the First Appellate Court remanded the matter

back for re-adjudication as no trial had been conducted by the trial Court

in respect of the disputed issues.

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

reference to the jurisdiction point, cited the judgment of the Hon'ble

Supreme Court of India in the case of Union of India and others Vs.

Kartar Kaur, reported in (2012) 12 SCC 505, wherein the Hon'ble

Supreme Court of India held as follows:

“12. It is not in dispute that till the filing of the second appeal, the petitioners had not questioned the jurisdiction of the civil court to entertain the suit filed by the respondent on the ground that the same was barred by Section 28 of the Act. We have no doubt that if such an objection had been raised at the threshold, the respondent may have been advised to withdraw the suit and file an application under Section 19 of the Act for grant of financial benefits in lieu of the service of her husband and also make an application under Section 21(3) for condonation of delay by showing sufficient cause for not filing the application within the period prescribed under Section 21(2). However, as no such https://www.mhc.tn.gov.in/judis/ objection was taken in the written statement, the

C.M.A.No.579 of 2018

respondent was precluded from availing the remedy by filing an application before the Central Administrative Tribunal. Therefore, the learned Single Judge of the High Court was fully justified in refusing to entertain the new plea taken by the petitioners and we do not find any valid ground to deprive the respondent, who is said to have reached the age of 90 years, of the monetary benefits payable in terms of the decree passed by the lower appellate court.”

5. Relying on the judgment cited supra, the learned counsel for the

appellant reiterates that the facts are also similar and in the present case,

the appellant is aged about 75 years and she is all along fighting the

litigation for more than 25 years and in the event of driving her back to

the Central Administrative Tribunal, would cause greater hardship and

she may not be in a position to redress her grievances in the manner

known to law. Thus, the learned counsel for the appellant submitted that

at this stage, this Court need not dismiss the claim of the appellant and

contrarily, it is to be decided on merits.

6. The learned counsel appearing on behalf of the 2nd

respondent/Railways made a submission that the suit is not https://www.mhc.tn.gov.in/judis/ maintainable, in view of the express bar under the Administrative

C.M.A.No.579 of 2018

Tribunals Act. However, this Court considered the said point and in

view of the fact that the parties are litigating the issues for more than 25

years, it is not preferable to send them back to the Central

Administrative Tribunal, which may further prolong the issue and in the

interest of justice, the judgment passed in A.S.No.120/2008 alone is to

be considered for the purpose of deciding the issues.

7. The learned counsel appearing on behalf of the 1st respondent,

who is also claiming that she is the legally wedded wife of the deceased

Natarajan that the Original Suit filed in O.S.No.139 of 2004 filed in

O.S.No.139 of 2004 was filed before the Principal Sub Court,

Villupuram and subsequently, it was transferred to Principal District

Munsif Court, Villupuram. After transferring the suit, the 1st respondent

has not received any notice or summons and therefore, she could not

able to contest the suit and only after the exparte decree and when the

family pension was stopped, she came to understand and thereafter, she

filed an Appeal Suit in A.S.No.120 of 2008. The learned counsel for the

1st respondent reiterated that her name was nominated in the Service

Records of the deceased employee Natarajan and as per the Nomination

in the Service Records, the Railway authorities sanctioned pension in https://www.mhc.tn.gov.in/judis/

her favour and she was continuously receiving the family pension as per

C.M.A.No.579 of 2018

the Railway Pension Rules. Only after passing the exparte decree, the

family pension granted to the 1st respondent was stopped and thereafter,

she came to know about the exparte order and filed an appeal in

A.S.No.120 of 2008.

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

findings of the First Appellate Court is improper, in view of the fact that

the suit ought not to have been remanded back to the trial Court. Instead,

the First Appellate Court ought to have taken evidence, if necessary and

decide the matter on merits and in accordance with law. It is contended

that remand will further cause longevity and the interest of the parties

would be prejudiced. Thus, the First Appellate Court would have

conducted the trial by examining the evidences and by framing the

issues and therefore, the order of the First Appellate Court is liable to be

set aside.

9. The learned counsel appearing on behalf of the 1st respondent

disputed the said contention by stating that the 1st respondent could not

able to get an opportunity to defend the case before the trial Court. She

was not even examined. She had no opportunity to cross examine the https://www.mhc.tn.gov.in/judis/

plaintiff. She could not able to produce other witnesses to establish her

C.M.A.No.579 of 2018

marriage with the deceased employee Natarajan. Elaborate exercise of

conducting a trial cannot be done before the First Appellate Court and

therefore, the judgment passed in A.S.No.128/2008 is in accordance

with the provisions of law and there is no infirmity as such.

10. This Court is of the considered opinion that relief sought for

in the Original Suit is undoubtedly relatable to the Railway Pension

Rules. Thus, strictly speaking, the suit is not maintainable. However, the

trial Court entertained the suit and passed an exparte decree and a First

Appeal was filed and the First Appellate Court also has not decided the

point on jurisdiction and passed a judgment. Now, the matter is before

the High Court by way of a Second Appeal. Under these circumstances,

if the appellant, who is now aged about 75 years is driven back to the

Central Administrative Tribunal, certainly the same would cause

hardship to all the parties and therefore, this Court is not inclined to

dismiss the suit on the ground of jurisdiction, more specifically, based

on the express bar under the Administrative Tribunals Act.

11. As far as the judgment dated 24.02.2018 in A.S.No.120 of

2008 is concerned, the First Appellate Court remanded the matter back https://www.mhc.tn.gov.in/judis/

mainly on the ground that the trial Court passed an exparte decree. The

C.M.A.No.579 of 2018

first respondent, who also claims that she is the legally wedded wife of

the deceased employee Natarajan was not examined or cross examined,

she could not able to get an opportunity to file her documents and

produced witnesses on her side. The entire exercise in this regard cannot

be undertaken by the First Appellate Court and therefore, the First

Appellate Court by invoking Order 41 Rule 23, remanded the matter

back to the trial Court.

12. This Court is of the considered opinion that under Section 107

of the Code of Civil Procedure, the First Appellate Court itself has got

powers to decide the matter finally. The First Appellate Court can

receive additional documents or examine witnesses, if necessary to

decide the matter finally and on merits. However, the fact regarding the

manner, in which, the suit was decided must also to be considered by the

Courts while remanding the matter. If the suit is decided on certain

preliminary issues or if the suit was decided exparte, then it is preferable

that the matter is remanded back to the trial Court for conducting a full

fledged trial. If the suit was decide on merits by examining the witnesses

and by considering the documents for re-appreciation of the evidence or

to examine left out any witness, the First Appellate Court itself can do https://www.mhc.tn.gov.in/judis/

the exercise. In other words, non-appreciation or certain omissions or

C.M.A.No.579 of 2018

commissions, if any found by the First Appellate Court in an appeal,

then such an exercise can very well be done by the First Appellate

Court, instead of remanding the matter back to the trial Court. It is

needless to state that remanding the matter would cause greater

prejudice to the interest of the parties. Litigation is prolonged and the

parties would suffer by adjudicating the issues second time before the

same Court. However, if no trial was conducted by following the

procedures as contemplated under the Code of Civil Procedure, then in

such cases, remand alone could be an option, then the First Appellate

Court cannot undertake to conduct a full fledged trial by examining all

the witnesses at the first instance. This being the factual distinctions to

be considered by the Appellate Courts while remanding the matter back

to the trial Court.

13. Remand is an exception. The Appellate Courts are expected to

decide the matters on merits and in accordance with law. This being the

rule only on exceptional circumstances. When the suits are decided by

the Trial Court on the basis of the preliminary issues or an exparte

decree was passed or large number of examination of witnesses and

filing of documents are required, then alone, remand can be made and https://www.mhc.tn.gov.in/judis/

not otherwise. Thus, each case is to be considered with reference to the

C.M.A.No.579 of 2018

facts and circumstances. In the present case, admittedly, the trial Court

passed an exparte decree. The first respondent, who claims that she is

the legally wedded wife of the deceased employee Natarajan, was not

participated in the suit and therefore, she could not able to examine

herself or cross examine the other witnesses and filed documents on her

side. This being the exercise to be done, the same cannot be done by the

First Appellate Court and it is preferable to be done by the trial Court as

the parties would get the right of appeal against an order if any passed

on merits and in accordance with law.

14. This being the factum established, the judgment dated

24.02.2018 passed in A.S.No.120 of 2008 stands confirmed and

consequently, the Civil Miscellaneous Appeal in C.M.A.No.579 of 2018

is dismissed.

15. The trial Court is directed to dispose of the suit as

expeditiously as possible and preferably within a period of six (6)

months from the date of receipt of a copy of this judgment, in view of

the fact that the appellant is aged about 75 years and the 1st respondent is

aged about 70 years. Considering the facts and circumstances, the https://www.mhc.tn.gov.in/judis/

parties to the appeal suit are directed to avail the opportunity, contest the

C.M.A.No.579 of 2018

case and co-operate for the early disposal of the suit. The parties to the

suit including the Railways are restrained from seeking unnecessary

adjournments on flimsy grounds. Even an adjournment is to be granted

on genuine grounds. The reasons are to be recorded by the Trial Court.

No costs. Consequently, connected miscellaneous petition is closed.

17.02.2021

kak Index: Yes/No Internet:Yes/No Speaking/Non-Speaking order

To

1. The I Additional Subordinate Judge, Villupuram.

2. The learned Additional District Munsif, Villupuram.

https://www.mhc.tn.gov.in/judis/ S.M.SUBRAMANIAM, J.

C.M.A.No.579 of 2018

kak

C.M.A.No.579 of 2018

17.02.2021

https://www.mhc.tn.gov.in/judis/