Kaliyan vs Rajan
2021 Latest Caselaw 1640 Mad

                                                                              C.M.A.No.1331 of 2014

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 25.01.2021

                                                       CORAM

                            THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                                C.M.A.No.1331 of 2014
                                                        and
                                                  M.P.No.1 of 2014

                     Kaliyan                                                      ..Appellant
                                                         Vs.

                     1.Rajan
                     2.Kanagasabhai
                     3.Srinivasan                                               ..Respondents

                     Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of
                     the C.P.C., against the judgment and decree dated 28.10.2011 made in
                     A.S.No.12 of 2011 passed by the Additional Subordinate Judge,
                     Vridhachalam, Cuddalore District, reversing the judgment and decree
                     dated 30.11.2010 made in O.S.No.552 of 2007 passed by the II
                     Additional District Munsif, Vridhachalam, Cuddalore District.


                                      For Appellant    : Mr.S.Senthilnathan

                                      For Respondent   : Mr.C.Selvaraj
                                                         [For R1 to R3]




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                                                                               C.M.A.No.1331 of 2014



                                                 JUDGMENT

The Judgment and Decree dated 28.10.2011 passed in A.S.No.12

of 2011 by the Additional Subordinate Judge, Vridhachalam, Cuddalore

District, is sought to be set aside in the present Civil Miscellaneous

Appeal.

2. The plaintiff is the appellant and the suit was instituted for

Declaration and for mean profits. The suit decreed in favour of the

plaintiff. The defendant filed A.S.No.12 of 2011. The First Appellate

Court remanded the matter back to the trial Court for re-adjudication

mainly on the ground that as per the additional written statement,

additional issues are not framed by the trial Court and therefore, it is an

important issue, the trial Court ought to have adjudicated. The earlier

suit was withdrawn and a fresh suit was filed and the validity of the

institution of the fresh suit is also to be adjudicated. In view of these

issues, the First Appellate Court set aside the judgment and decree

passed by the trial Court and remanded the matter back for re-trial. The

appellant raised a point that the earlier suit filed in O.S.No.45 of 2005 is

a suit for Partition and O.S.No.522 of 2007 is a suit for Declaration and

possession and therefore, there is no bar under Order 23 Rule 1 of the https://www.mhc.tn.gov.in/judis/

C.M.A.No.1331 of 2014

Code of Civil Procedure.

3. In view of the fact that the present suit is for Declaration, the

suit is maintainable and the trial Court has not committed any error.

With reference to the additional written statement filed by the 3rd

defendant, the appellant states that the statements are vague and the

contradictions noticed are unacceptable.

4. This Court is of the opinion that even in case of any

contradictions or an interpretation under Order 23 Rule 1 is required

with reference to the facts and circumstances, the First Appellate Court

itself can frame an issue and dispose of the case on merits and in

accordance with law. For framing of the additional issue, the suit need

not be remanded back to the trial Court for re-adjudication. Such a

remand is impermissible and in fact, the First Appellate Court is well

within its powers to frame additional issues, examine witnesses and

appreciate the other documents, if necessary and decide the matter

finally on merits and in accordance with law.

5. Section 107 of the Code of Civil Procedure empowers the trial https://www.mhc.tn.gov.in/judis/

C.M.A.No.1331 of 2014

Court to frame issues and take additional evidence or to take such

evidence required to be taken. Order 41 of the C.P.C., 1908, provides

various provisions relating to hearing of an appeal, remand of case by

the Appellate Court, Production of Additional Evidence in Appellate

Court. Order 41, Rules 16 to 29 under the Sub heading 'Procedure on

hearing' is clear in this regard. Order 41 Rules 23 and 23A speaks about

Remand. Order 41 Rules 24 contemplates 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 the

Appellate Court proceeds.”

6. Therefore, the Appellate Courts are expected to be slow in

remanding the matter. Even for small errors including non appreciation

of evidence or documents, cannot be a ground to remand the matter back

to the trial Court. The Appellate Court has got powers to re-frame the

issues or frame an additional issue or take evidence or examine https://www.mhc.tn.gov.in/judis/

C.M.A.No.1331 of 2014

witnesses, if the trial Court adjudicated the issues. Order 41 Rule 23

contemplates, if the suit was decided on preliminary issue, then the only

the remand would be proper and if the trial Court has adjudicated the

issues with reference to the documents and evidence or framing

additional issues, the case need not be remanded back to the trial Court.

This being the spirit of Order 41 Rule 24, the present judgment passed

by the First Appellate Court, remanding the matter back is not in

accordance with the provisions in Order 41 and therefore, the present

case falls within the scope of Order 41 Rule 24 of C.P.C.

7. Accordingly, the judgment and decree dated 28.10.2011 passed

in A.S.No.12 of 2011 is set aside and the Civil Miscellaneous Appeal in

C.M.A.No.1331 of 2014 stands allowed. The First appellate Court is

directed to frame additional issues, take evidence or examine witnesses,

if necessary by affording opportunity to all the parties and decide the

appeal suit finally. The said exercise is directed to be done within a

period of six (6) months from the date of receipt of a copy of this

judgment. The parties to the are directed to co-operate for the early

disposal of the appeal suit.

S.M.SUBRAMANIAM, J.

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

C.M.A.No.1331 of 2014

kak

8. 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.

25.01.2021

kak Index: Yes/No

To

1.The Additional Subordinate Judge, Vridhachalam, Cuddalore District.

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

C.M.A.No.1331 of 2014

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