Duraisamy vs Ramasamy
2021 Latest Caselaw 1072 Mad

                                                                          C.M.A.No.3286 of 2017

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 19.01.2021

                                                     CORAM

                            THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                              C.M.A.No.3286 of 2017
                                                       and
                                              C.M.P.No.20746 of 2017

                     1.Duraisamy
                     2.Adhimoolam
                     3.Chandrasekharan
                     4.Ramalinga Naicker
                     5.Ponnusamy
                     6.Santhanam                                            ..Appellants

                                                       Vs.
                     Ramasamy                                              ..Respondent

                     Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of
                     C.P.C., against the Judgment and Decree dated 27.07.2017 passed by the
                     Additional Subordinate Judge, Chingelput in A.S.No.15 of 2013,
                     remitting/remanding the appeal to the Hon'ble District Munsiff,
                     Chingelput and appointing an Advocate Commissioner to inspect the
                     suit property to find out whether the plaintiff's claim of way is
                     acceptable.




                     1/8

https://www.mhc.tn.gov.in/judis/
                                                                              C.M.A.No.3286 of 2017




                                    For Appellant     :     Mr.T.S.Vijaya Raghavan

                                    For Respondent    :     Mr.J.Srinivasa Mohan


                                                    JUDGMENT

The Judgment and decree dated 27.07.2017 passed by the

Additional Subordinate Judge, Chingelput in A.S.No.15 of 2013 is

under challenge in the present Civil Miscellaneous Appeal.

2. The suit was instituted by the respondent for permanent

injunction. The suit was dismissed by the trial Court. The respondent

filed the appeal suit in A.S.No.15 of 2013. The First Appellate Court

adjudicated the issues on merits. However, remanded the matter back to

the trial Court for appointment of an Advocate Commissioner to inspect

the suit property in the presence of both the parties and their counsel and

to submit a Plan and Report showing the actual facts as they are found

and as they exists.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3286 of 2017

3. Once the First Appellate Court adjudicated the issues on merits

with reference to the documents and evidences, the appeal suit is to be

disposed of on merits and in accordance with law and by affording

opportunity to the all parties. Remanding of the matter of appointment

of an Advocate Commissioner is unnecessary. Under Section 107of the

C.P.C., the First Appellate Court has got powers to take additional

evidence, examine witnesses and decide the matter on merits. Even in

case, the trial Court failed to appreciate the evidences or to consider the

documents, the said exercise can very well be done by the First

Appellate Court and for that purpose, the cases cannot be remanded

back. Only if the suit is decide on preliminary issue, then alone, the suit

can be remanded for re-trial and not otherwise.

4. The question would arise whether the order of remand falls

under Order 41 Rule 23 or Rule 23A of C.P.C. Order 41 Rule 23

unambiguously enumerates that “Where the Court from whose decree an

appeal is preferred has disposed of the suit upon a preliminary point and

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3286 of 2017

the decree is reversed in appeal, the Appellate Court may, if it thinks fit,

by order remand the case.”

5. Order 41 Rule 24 stipulates that “Where evidence on record

sufficient, Appellate Court may determine case finally - Where the

evidence upon the record is sufficient to enable the Appellate Court to

pronounce judgment, the Appellate Court may, after resettling the

issues, if necessary, finally determine the suit, notwithstanding that the

judgment of the Court from whose decree the appeal is preferred has

proceeded wholly upon some ground other than that on which Appellate

Court proceeds”.

6. Therefore, the Appellate Court has got powers to find out the

facts, if necessary and decide the matter finally instead of remanding the

matter back. Remanding the matter would cause prejudice to the interest

of the parties. The duration of the suit is lengthened and going beck to

the trial Court will cause frustration in the minds of the litigants.

Therefore, the Courts are expected to decide the matter on merits in all

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3286 of 2017

circumstances and only on exceptional circumstances, where the suits

are decided on preliminary issue, then alone, an order of remand is to be

passed and not otherwise.

7. In the present case, the trial Court adjudicated the issues on

merits and with reference to the documents and evidences. If at all, the

First Appellate Court raised a doubt regarding the physical features of

the suit properties, then the First Appellate Court can very well appoint

a Commissioner, examine the suit property and decide the matter on

merits and in accordance with law and by affording opportunity to all

the parties. Contrarily, for the purpose of appointment of Commissioner,

the appeal suit cannot be remanded back for re-trial. Such a course

would cause inconvenience to the litigants and would do no service to

the cause of justice. Therefore, the Courts are expected to remand the

matter only on exceptional circumstances, when the issues are not

decided by the trial Court with reference to the documents and

evidences.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3286 of 2017

8. As far as the present case is concerned, it squarely falls under

Order 41 Rule 24 and the First Appellate Court can very well decide the

matter finally by receiving additional documents or by examining

witnesses, if necessary. All such exercise can be done by the First

Appellate Court itself with reference to the provisions of the Code of

Civil Procedure. Accordingly, this Court is of an opinion that the First

Appellate Court had committed an error in remanding the matter back

for re-adjudiation by appointing an Advocate Commissioner.

9. Accordingly, the judgment and decree dated 27.07.2017 passed

by the Additional Subordinate Judge, Chingelput in A.S.No.15 of 2013

is set aside and consequently, the Civil Miscellaneous Appeal in

C.M.A.No.3286 of 2017 stands allowed. The First Appellate Court is

directed to dispose of the First Appeal 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. The parties to the First Appeal are directed to

co-operate for the early disposal of the appeal suit.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3286 of 2017

10. The parties to the appeal are restrained from seeking

unnecessary adjournments. Adjournments are to be granted only on

genuine grounds and by recording reasons. Adjournments on flimsy

grounds are to be rejected in limine by all Courts. The parties cannot be

given privilege of getting adjournments for their benefit in order to

prolong and protract the issues. No costs. Consequently, connected

miscellaneous petition is closed.

19.01.2021

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

To

1. The Additional Subordinate Judge, Chingelput.

2.The Sub-Assistant Registrar, A.E.Section, High Court of Madras.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3286 of 2017

S.M.SUBRAMANIAM, J.

kak

C.M.A.No.3286 of 2017

19.01.2021

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