Madras High Court
Saraswathi vs Devaki on 17 February, 2021
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
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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
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decided that the appellant is the legally wedded wife of the deceased
C.M.A.No.579 of 2018
Railway employee Natarajan. That is the reason why, the relief of
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
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Court and an exparte decree was passed. Challenging the said judgment
C.M.A.No.579 of 2018
and decree, the 1st respondent, who also claims as the legally wedded
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
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period prescribed under Section 21(2). However, as no
C.M.A.No.579 of 2018
such objection was taken in the written statement, the
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
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C.M.A.No.579 of 2018
maintainable, in view of the express bar under the Administrative
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 and decree 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 1 st 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 1 st 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
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in the Service Records, the Railway authorities sanctioned pension in her
C.M.A.No.579 of 2018
favour and she was continuously receiving the family pension as per 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
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was not even examined. She had no opportunity to cross examine the
C.M.A.No.579 of 2018
plaintiff. She could not able to produce other witnesses to establish her
marriage with the deceased employee Natarajan. Elaborate exercise of
conducting a trial cannot be done before the First Appellate Court and
therefore, the judgment and decree 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 and decree. 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 and decree dated 24.02.2018 in
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A.S.No.120 of 2008 is concerned, the First Appellate Court remanded
C.M.A.No.579 of 2018
the matter back mainly on the ground that the trial Court passed an
exparte decree. The 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
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examine left out any witness, the First Appellate Court itself can do the
C.M.A.No.579 of 2018
exercise. In other words, non-appreciation or certain omissions or
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
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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 and decree
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
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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.
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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/
