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,

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

the appeal is liable to be rejected.

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

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

conclusion that the case is fit one for the purpose of remand.

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

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

may lead to open an opportunity to the plaintiff to 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

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

appellants/defendants' side witnesses and to reappraise 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.