Madras High Court
Sigamani vs M.Appunu on 27 January, 2021
C.M.A.No.676 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.01.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.A.No.676 of 2020
C.M.P.No.4050 of 2020
1.Sigamani
2.Selvaraj .. Appellants
vs.
M.Appunu .. Respondent
PRAYER : Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of
C.P.C, against the Judgment and Decree of the learned Principal District
Judge of Krishnagiri dated 08.08.2019 in A.S.No.80 of 2017 setting aside
the judgment and decree of the Sub-ordinate Judge, Uthangarai dated
06.07.2016 in O.S.No.61 of 2014 and remanding the suit to the trial Court.
For Petitioners : Mr.J.Hariharan
For Respondent : Mr.V.Lakshmi Narayanan
1/11
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C.M.A.No.676 of 2020
ORDER
The Present Civil Miscellaneous Appeal on hand is filed against the
judgment and decree dated 08.08.2019 passed in A.S.No.80 of 2017.
2. The respondent instituted a suit for partition and permanent
injunction and the suit was dismissed. Challenging the said decree, the
respondent/plaintiff filed an appeal suit in A.S.No.80 of 2017. The First
Appellate Court remanded the matter back to the trial Court to clear all the
deformities in the suit and to provide an opportunity to the respondent to
file an application for appointment of Commissioner to note down the
physical features at present and thereafter, decide the matter afresh. At the
outset, the order of remand was in order to provide an opportunity to the
plaintiff to file an application for appointment of Commissioner to note
down the physical features of the suit schedule property and decide the
issues afresh.
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C.M.A.No.676 of 2020
3. The question arise regarding the issues framed by the trial Court
and the adjudication made. Eight issues were framed by the trial Court in
the suit and they are as follows:
“1. Whether the plaintiff is entitled for partition in
Item 'A', Item 'B' as prayed for?
2. Whether the plaintiff is entitled for the prayer of
permanent injunction as prayed for?
3. Whether the partition already made in
O.S.No.74/2000 is true?
4. Whether suit is barred by resjudicata?
5.Whether the description of property is correct?
6.Whether the suit is barred by non-joinder of
necessary parties?
7.Whether the suit is barred by limitation?
8.To what other relief?”
4. The point raised regarding the limitation was also framed as an issue.
Resjudicata was also an issue framed by the trial Court. The trial Court
adjudicated the issues with reference to the documents as well as the
evidence produced by the respective parties to the original suit. There may
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C.M.A.No.676 of 2020
be some lapses on the part of the trial Court. The First Appellate Court
would have noted down certain deformities or discrepancies or improper
appreciation of documents. However, all such defects may be rectified by
the First Appellate Court, if necessary, by appointing an Advocate
Commissioner or receiving additional documents or examining the
witnesses. All these can be done by the first Appellate Court and therefore,
remanding the matter must be done only on exceptional circumstances. The
First Appellate Court is well within its powers to decide the appeal suit
finally by examining the witnesses or receiving additional documents, if
necessary, by appointing an Advocate Commissioner, if there is any
deformity with reference to the nature of the property or its usage etc.
Contrarily, remanding the matter back would not do any service to the cause
of justice. Such remand would cause prejudice to the interest of the parties
to the suit. The life of the litigation will be lengthened and protraction of
issues are certainly not preferable. Erroneous appreciation or in acceptance
or certain evidence may not be a ground to remand the matter back. Such
remand is not falling within the scope of Order XLI Rule 23 and Rule 23A
of C.P.C.
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C.M.A.No.676 of 2020
5. Validity of remand has to be decided by reference to Rule 25. An
order of remand is to be considered as it is pre-eminently necessary “Ex-
debito jusitiae”. Once the suit was decided by recording findings on all the
issues, then the First Appellate Court has to decide the appeal suit finally, if
necessary, by accepting necessary documents or through examination of
witnesses, if required in the interest of justice and to reach finality. Once the
issues are framed and such issues are adjudicated, then the scope of remand
is limited and the First Appellate Court cannot remand on such
circumstances. Order 41 Rule 23 of C.P.C stipulates that “where the court
from whose decree an appeal is preferred has disposed of the suit upon a
preliminary point and the decree is reversed in appeal, the Appellate Court
may, if it thinks fit, by order remand the case”. Therefore, once the suit is
decided on certain preliminary issue and there was no adjudication
regarding all the issues with reference to the documents and evidence, then
alone, remand is justified and not otherwise.
6. Order XLI Rule 24 of C.P.C enumerates that “where evidence on
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C.M.A.No.676 of 2020
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.”
7. With reference to Section 107 of C.P.C, the First Appellate Court is
empowered to frame additional issues and decide the appeal suit finally.
Therefore, the First Appellate Court is not expected to shirk his
responsibilities in deciding the issue finally. All appeal suits are to be
disposed of on merits and in accordance with law. Remanding the matter
back to the trial Court only on exceptional circumstances and on exceptional
circumstances, if the case falls within the scope of Rule 23 and Rule 23A
Order XLI of C.P.C, then alone, justified and not otherwise. The power of
remitting its ordinarily to be resorted to when the trial Court has omitted to
try any material issue or to determine any question of fact. The proper
procedure in a case where the trial Court, while disposing of the suit on
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C.M.A.No.676 of 2020
merits failed to determine one or more of the material issues/questions is to
remit the issue/question (s) under Rule 25 and not to remand the whole case
for re-trial. In the present case, the reasons furnished for remanding the
matter back to the trial Court by the First Appellate Court are enumerated in
Paragraph No.14 of the judgment which is impugned. The said findings
reveal that “ the suit is filed within 12 years because of the reason that the
appeal A.S.No.61 of 2000 was decreed on 25.09.2001 and the present suit
O.S.No.61 of 2014 was filed on 02.08.2013 which is within the limitation
of 12 years. The plaintiff and the defendant have admitted that both of them
are enjoying the property as common property which is to be specifically
demarcated. Hence, this Court is of the view that the suit in O.S.No.61 of
2014 is to be remanded back to the trial Court to clear all the deformities in
the suit and also the plaintiff is to be given an opportunity to file application
for appointment of Commissioner to note down the physical features at
present and decide the matter as fresh without influence of the previous
judgment”.
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C.M.A.No.676 of 2020
8. Such deformities can very well be rectified by the First Appellate
Court by appointing an Advocate Commissioner. Either of the parties are at
liberty to file an application seeking an Advocate Commissioner to note
down the physical features at present and based on the report, a finality can
be reached in respect of the disputes between the parties. Instead of
appointing an Advocate Commissioner in order to settle the issues, the
entire suit need not be remanded back to the trial Court and the other issues
adjudicated by the trial Court can very well be considered and a decision
may be arrived by the First Appellate Court itself. The powers of the First
Appellate Court is very well enumerated and settled. When the First
Appellate Court has got ample powers to get documents and accept
additional documents and appoint Advocate Commissioner etc., for all these
reasons, the entire suit need not be remanded back which would cause
greater prejudice to the interest of the parties as they have to go back and
conduct trial once again and it will result in longevity of the litigation which
is certainly not preferable.
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C.M.A.No.676 of 2020
9. This being the factum, the First Appellate Court is directed to deal
with the deformities, if necessary, by appointing an Advocate Commissioner
or receiving additional documents or by examining the witnesses, if
required to resolve the issues and decide the appeal suit finally on merits
and in accordance with law by affording opportunity to all the parties to the
appeal suit. The First Appellate Court is requested to dispose of the appeal
suit within a period of 10 months from the date of receipt of a copy of this
Order by affording opportunity to all the parties concerned. The parties to
the appeal suit are directed to not seek any unnecessary adjournments.
Adjournments on genuine grounds are to be granted only by recording
reasons.
10. With these directions, the Judgment and Decree dated
08.08.2019 passed in A.S.No.80 of 2017 is set aside and the appeal suit is
remanded back to the First Appellate Court to decide the issue finally and
pass an order on merits and in accordance with law.
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C.M.A.No.676 of 2020
11. Accordingly, the Civil Miscellaneous Appeal stands allowed. No
costs. Consequently, connected Miscellaneous Petition is also closed.
27.01.2021
ssb
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
To
1. The learned Principal District Judge, Krishnagiri
2.Sub-ordinate Judge, Uthangarai
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C.M.A.No.676 of 2020
S.M.SUBRAMANIAM, J.
ssb
C.M.A.No.676 of 2020
27.01.2021
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