Madras High Court

Vinayagamoorthy vs Jayammal (Died) on 4 January, 2021

                                                                       C.M.A.No.3763 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 04.01.2021

                                                      CORAM

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

                                              C.M.A.No.3763 of 2019
                                              C.M.P.No.21620 of 2019

                     Vinayagamoorthy                                          ..Appellant

                                                        Vs.
                     1.Jayammal (Died)
                     2.M.Govindarajan                                      ..Respondents

                     R2 is recorded as LR of the deceased R1 as per the order of this
                     Court dated 05.12.2019 made in C.M.A.No.3763 of 2019 as per
                     memo dated 05.12.2019 are recorded.

                     Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1 (u)
                     of CPC, to set aside the judgment and decree dated 07.12.2018
                     passed in A.S.No.61 of 2010 on the file of the Court of Subordinate
                     Judge, Tambaram by reversing remand back judgment and decree
                     passed in O.S.No.80 of 2005 dated 23.06.2010 on the file of the
                     court of District Munsif, Tambaram.


                                     For Appellant   : Mr.T.Thiyagarajan

                                     For Respondents : Mr.R.Thiyagarajan




                     1/9




https://www.mhc.tn.gov.in/judis/
                                                                                C.M.A.No.3763 of 2019

                                                      JUDGMENT

The Judgment and decree passed in A.S.No.61 of 2010 dated

07.12.2018 is sought to be set aside in the Civil Miscellaneous

Appeal on hand.

2. The appellant is the plaintiff in the suit and the suit was

instituted for declaration and permanent injunction. Admittedly, the

suit was decreed by the trial Court. Thereafter, the defendant

preferred an appeal in A.S.No.61 of 2010 before the learned Sub-

ordinate Judge, Tambaram. The First Appellate Court remanded the

matter back to the trial Court to file additional documents as

sought for by the respondent herein and record evidence by

providing an opportunity to all the parties and examine and decide

the matter fresh within a period of two months. The said judgment

is under challenge in the present Civil Miscellaneous Appeal.

3. The learned counsel appearing for the appellant

sterroneously contended that the first Appellate Court has

committed an error in remanding the matter back to the trial court

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3763 of 2019

for re-trial. Contrarily, the first Appellate Court itself should have

continued the examination of the documents filed by the

respondent herein and made a finding so as to avoid further

prolongation of the civil litigation. Thus, the appeal is to be allowed.

4. The learned counsel for the respondent objected the said

contention by stating that a decree cannot be remanded as a

defective one and the lapse committed by the trial Court cannot be

filled up in an appeal which would cause not only inconvenience

and also affect the rights of the parties concerned. The first

Appellate Court has rightly considered the grounds raised by the

respondents for the purpose of remanding the matter back for re-

consideration. The documents sought to be filed as additional

documents are vital so as to establish the case of the respondents

in the present appeal. In fact, the first Appellate Court has provided

an opportunity to cross-examine the witnesses and in spite of

availing this opportunity in order to defend the case, the appellant

has chosen the present appeal without any merit. Thus, the appeal

is liable to be rejected.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3763 of 2019

5. This Court is of the considered opinion that the suits are to

be decreed by considering the relevant documents filed by the

parties. Even in case, the parties filed additional documents, during

the pendency of the trial or after some time, the Courts are bound

to consider whether those additional documents are relevant for

the purpose of issues to be decided. If those documents are

relevant for the purpose of ascertaining the rights of the parties,

then the Courts shall not hesitate in allowing those petitions and

provide an opportunity to the other parties to scrutinize those

documents and cross-examine the witnesses. At the outset,

opportunities are to be provided to the parties to the litigations and

a complete justice is to be provided with reference to the disputes

or issues raised in the litigations. This being the prime object, the

Courts cannot shy away from accepting additional documents, if the

Courts are of the opinion that those documents are relevant for the

purpose of deciding the rights of the parties. This being the

principles to be adopted, the first Appellate Court has considered

those aspects and arrived a conclusion that the case is fit one for

the purpose of remand.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3763 of 2019

6. The findings of the trial Court in this regard are that the

remanding of the case is absolutely required for fine appreciation,

after giving a chance to both parties and the documents filed along

with the petitions in I.A.No.111 of 2016 and I.A.No.108 of 2018 are

relevant for the purpose of framing the additional issues and to

permit the respondents herein to adduce additional documents.

7. Paragraph Nos.28 to 30 of the judgment of the first

Appellate Court are relevant, which are extracted hereunder:

28. Based on the above facts and circumstances, this Court is of the considered view that, remanding of this case itself absolutely required for fine appreciation of the facts after giving a chance to both parties.

Furthermore, the documents filed along with the petitions in I.A.No.111/2016 and I.A.No.108/2018 received by this Court are permitted to be filed before the trial Court, and this Court is inclined to direct the trial Court to frame necessary additional issues and permit the appellants to adduce additional evidence it may lead to open an opportunity to the plaintiff to

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3763 of 2019

scrutinize these documents by way of cross-examination of the plaintiff's side witnesses and to disprove the contention of the appellants which may lead to clarify the issues in a better manner which will enable the Court to adjudicate the issues in right spirit and in a proper way.

29. Hence on the above score this Court is of the considered view that, the case can be remanded back to the file of the trial Court, and the appellants can be permitted to produce the documents filed along with the petitions in I.A.No.111/2016 and I.A.No.108/2018.

30. In the result, this appeal is allowed and the decree and judgment in dated 23.06.2010 passed by the District Munsif, Tambaram in O.S.No.80/2005 is set aside and the case is remanded back to the file of the trial Court with direction to the trial judge that the learned trial Judge directed to frame necessary additional issues and permit the appellants to adduce oral evidence and to permit the appellants to produce the documents as detailed in the petition in I.A.No.111/2016 and I.A.No.108/2018 on the file of this Court and extend sufficient opportunities to other side also, to scrutinize the documents filed on the side of the appellants by way of cross-examination of the appellants/defendants' side witnesses and to reappraise

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3763 of 2019

the case on the basis of the above facts and re- adjudicate the issues, and dispose the suit within a period of two months from the date of reception of the decree and the judgment without being influenced by any of the observations of the Court. Court fee paid by the appellant is ordered to be refunded. No costs.

8. This Court is of the considered opinion that the first

Appellate Court has rightly considered the issues in a right

perspective and there is no perversity or infirmity as such with

reference to the findings arrived for the purpose of remanding the

matter back. This apart, the first Appellate Court has further

granted two months to dispose the case. Thus, there is no reason

whatsoever to interfere with the findings of the first Appellate

Court. However, since the time limit fixed by the first Appellate

Court was expired, this Court is inclined to grant further time to

dispose of the case. Therefore, the trial Court is directed to dispose

the suit as expeditiously as possible preferably within a period of

four months from the date of receipt of a copy of this Judgment.