Madras High Court
A.Chinnammal vs K.Sampath on 25 January, 2021
C.M.A.No.318 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.01.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.A.No.318 of 2015
and
M.P.No.1 & 2 of 2015
1.A.Chinnammal
2.A.Mohan
3.A.Gopalan .. Petitioner
vs.
1.K.Sampath
2.K.Ramalingam
3.K.Loganathan
4.K.Shanmugham
5.E.Ganesan .. Respondents
PRAYER : Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of
the Civil Procedure Code, to set aside the judgment and decree dated
09.12.2014 in A.S.No.30/2014 on the file of the Principal Sub-ordinate
Judge, Salem remanding the judgment and decree dated 03.01.2014 in
O.S.No.528 of 2011 on the file of the 1st Additional District Munsif Court,
1/7
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C.M.A.No.318 of 2015
Salem and allow the present appeal and award enhanced compensation as
prayed for.
For Petitioner : M/s.Revathy
For M/s.R.Nalliyappan
For Respondent : Mr.C.Prabakaran for R1 & R4
ORDER
The Judgment and Decree dated 09.12.2014 passed in A.S.No.30 of
2014 is under challenge in the present Civil Miscellaneous Appeal.
2. The plaintiffs are the appellants in the suit and the suit was instituted
for grant of permanent injunction. The suit was decreed in favour of the
plaintiff. The defendants filed A.S.No.30 of 2014 before the Principal Sub-
Ordinate Court, Salem and the first Appellate Court set aside the judgment
and decree of the trial court remanding the matter back for re-trial.
3. The reasons stated for remanding the matter by the first Appellate
Court are that “the trial Court had given a finding that it is only a two cubit
pathway and restraining the appellants/defendants not to alter or extend
the two cubit pathway above the two cubit pathway but this court finds that
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C.M.A.No.318 of 2015
the Commissioner had failed to measure the pathway with assistance of the
qualified surveyor. The pathway marked in the photo/Ex.A20 would clearly
prove that it is definitely above the breadth of two feet. Further, the
respondent/plaintiff also failed to prove the recitals in Ex.A1 regarding the
two cubit pathway and the reference of two cubit pathway to reach the well
is a confused in nature and it will be clarified only by way of remanding the
appeal to the trial Court and to re-issue the commission and to measure the
property with the assistance of the qualified surveyor. Further the plaintiff
and the defendants are permitted to adduce further oral evidence and
documentary evidence to prove their case”.
4. This Court is of the considered opinion that when the documents and
evidence are very much available before the first Appellate Court, the first
Appellate Court is expected to pass final order on merits and in accordance
with law as contemplated under Order XLI Rule 24 of C.P.C. An order of
remand cannot be passed in a routine manner. If the trial Court failed to
adjudicate the issues with reference to the documents and evidences, then
alone, an order of remand can be passed by the first Appellate Court and
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C.M.A.No.318 of 2015
with reference to certain lapses or defects or filing additional documents, it
can be done before the first Appellate Court itself by the respective parties.
Order XLI Rule 24 of C.P.C enumerates that “where evidence on record
sufficient, Appellate Court may determine case finally”. In the present case,
the first Appellate Court has gone into the merits of the case and appreciated
the pathway marked in Ex.A20. This apart, the defect identified by the first
Appellate Court is regarding the report of the Commissioner, more
specifically, the measurement of the pathway. If necessary, the first
Appellate Court would have done the exercise by appointing another
Commissioner and get report or decide the matter with reference to the
documents available on record. Contrarily, the case cannot be remanded
back to the trial Court for appointing a second Commissioner so as to
inspect the suit pathway with the assistance of the qualified surveyor.
Remanding the matter back to the trial Court would cause longevity to the
litigation and the parties would get frustrate and it will take long time. In
view of the facts and circumstances, this Court is of the considered opinion
that the reasons recorded by the first Appellate Court for remanding the
matter back to the trial Court is not convincing. The first Appellate Court is
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C.M.A.No.318 of 2015
empowered to decide the issues by receiving additional documents or by
taking evidence, if necessary, in respect of lapses or defects committed in
measurement of the suit properties or otherwise. Accordingly, the judgment
and decree dated 09.12.2014 passed in A.S.No.30 of 2014 is set aside and
consequently the appeal suit in A.S.No.30 of 2014 stands remanded back to
the First Appellate Court for deciding the case on merits and in accordance
with law, if necessary, by accepting additional documents and evidence or
examining the witnesses and affording opportunity to all the parties. The
First Appellate Court is requested to dispose the suit as expeditiously as
possible preferably within a period of six months from the date of receipt of
a copy of this Order.
5. 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.
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C.M.A.No.318 of 2015
6. With these observations, the Civil Miscellaneous Appeal stands
allowed. No costs. Consequently, connected miscellaneous petitions are also
closed.
25.01.2021
Speaking Order/Non-Speaking Order.
Internet : Yes/No.
Index: Yes/No.
ssb
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C.M.A.No.318 of 2015
S.M.SUBRAMANIAM, J.
ssb
To
1. The Principal Sub-ordinate Judge, Salem
2. 1st Additional District Munsif Court, Salem.
C.M.A.No.318 of 2015
25.01.2021
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