Madras High Court
Kanthamani vs Mohan on 21 January, 2021
C.M.A.No.1476 of 2018 and
C.M.P.No.11736 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.01.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.1476 of 2018 and
C.M.P.No.11736 of 2018
1.Kanthamani
2.Jayaseelan ..Appellants
Vs.
1.Mohan
2.Dhanalakshmi ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Order 43(1)(u) of
C.P.C., against the decree and judgment dated 22.02.2018 made in
A.S.No.15 of 2014, on the file of the Sub Court, Madurantakam,
remanding back for fresh trial of the judgment and decree dated
17.04.2014 made in O.S.No.55 of 2010, on the file of the District
Munsif Court, Madurantakam.
For Appellants : Ms.Zeenath Begum
For Respondents : Mr.M.Rajasekhar for R1
No appearance for R2
1/8
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1476 of 2018 and
C.M.P.No.11736 of 2018
JUDGMENT
The judgment and decree dated 22.02.2018 made in A.S.No.15 of
2014, is under challenge in the present civil miscellaneous appeal.
2. The suit was instituted by the appellants and the suit is for
declaration, permanent injunction and for delivery of possession. The
suit was decreed in favour of the plaintiffs. Thus, the defendants filed
A.S.No.15 of 2014. During the pendency of the appeal suit, both the
plaintiffs as well as the defendants filed interlocutory applications under
Order 41 Rule 27 of C.P.C., for receiving additional documents.
3. Both the interlocutory applications were taken up for hearing
by the first Appellate Court along with the first appeal in A.S.No.15 of
2014. The first appellate Court, considering the interlocutory
applications filed in I.A.No.28 of 2017 & I.A.No.192 of 2017, under
Order 41 Rule 27 of C.P.C., remanded the matter back to the Trial Court
for reconsideration. The said judgment is under challenge in the present
appeal.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1476 of 2018 and
C.M.P.No.11736 of 2018
4. The question arise is whether the order of remand is in accord
with Order 41 Rule 23 and 23(A) or not. The Section 107 of C.P.C.,
stipulates powers of the appellate Court. The appellate Court is well in
its power to determine the case finally and frame issues and to take
additional evidence etc. Order 41 Rule 23 may be invoked when the suit
was decided by the Trial Court on certain preliminary issues. If the suit
was adjudicated with reference to the documents and evidence by the
Trial Court, then for the purpose of framing of additional issues or
recasting of issues or for examining of one witness, the appellate Court
need not remand the matter back to the Trial Court. Such exercise shall
be done by the appellate Court itself. Therefore, while remanding the
matter back to the Trial Court under Order 41 Rule 23 and 23(A), the
appellate Courts are expected to be cautious. Only on exceptional
circumstances where it is not possible for the first appellate Court to
decide the matter finally, then the matter is to be remanded and not
otherwise.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1476 of 2018 and
C.M.P.No.11736 of 2018
5. In all other circumstances, where as the Trial Court decided the
issues on merits by adjudicating the documents and evidence, then any
lapses committed, can be re-adjudicated by the appellate Court itself.
Therefore, the scheme of C.P.C. is to be considered in this aspect. Order
41 Rule 24 of C.P.C., enumerates that “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 the Appellate Court
proceeds”
6. Thus, the appellate Court is expected to decide the matter
finally under Rule 24 of Order 41 in the event of minor lapses or certain
additional documents were not considered or certain witnesses were not
examined by the Trial Court. The first appellate Court shall recast the
issues or frame additional issues or accept additional documents or
examine witnesses, if required, for the purpose of passing final orders in
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1476 of 2018 and
C.M.P.No.11736 of 2018
the appeal suit. In the present case, admittedly, the suit was decided on
merits and the documents and evidences were appreciated by the Trial
Court. While so, the missing elements in the suit can be adjudicated by
the first appellate Court by affording opportunity to all the parties to the
appeal suit.
7. Contrarily, remanding the matter back may be an easy way for
the Courts, but, the same would cause prejudice to the interest of the
litigants. The litigations are prolonged unnecessarily, the litigants are
bound to go back to the Trial Court once again which will take longer
time for the disposal of the suit. This would frustrate the minds of every
litigants.
8. Therefore, in all circumstances, the appellate Court is expected
to decide the matter on merits and by affording opportunity to the
parties. This being the principles to be followed with reference to the
scheme of C.P.C., there is no reason whatsoever for the appellate Court
in the present case to remand the matter back. However, the appellate
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1476 of 2018 and
C.M.P.No.11736 of 2018
Court shall provide opportunity to all the parties to file additional
documents or examine witnesses or to verify the signatures in a
particular document by sending the documents to handwriting expert
and do all the needful for the purpose of disposal of the appeal suit on
merits and in accordance with law.
9. This being the factum established, the judgment and decree
dated 22.02.2018 passed in A.S.No.15 of 2014 is set aside and
C.M.A.No.1476 of 2018 stands allowed. The appellate Court is directed
to decide the matter finally on merits and in accordance with law by
affording opportunity to all the parties to the appeal suit. The said
exercise is directed to be done within a period of six months from the
date of receipt of a copy of this order. No costs. Consequently,
connected miscellaneous petition is closed.
10. The parties to the suit are directed to cooperate for the earlier
disposal of the suit. The Trial Court should decline unnecessary
adjournments on flimsy grounds if sought for by the parties to the suit.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1476 of 2018 and
C.M.P.No.11736 of 2018
The adjournments sought are to be granted only on genuine grounds and
by recording reasons. Thus, the Trial Court is expected to proceed with
the case without granting any unnecessary adjournments either at the
instance of the parties or by the Courts.
21.01.2021
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
gsk
To
1.The District Munsif Court,
Madurantakam.
2.The Sub Court,
Madurantakam.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1476 of 2018 and
C.M.P.No.11736 of 2018
S.M.SUBRAMANIAM, J.
gsk
C.M.A.No.1476 of 2018 and
C.M.P.No.11736 of 2018
21.01.2021
https://www.mhc.tn.gov.in/judis/
