Madras High Court
V.P.Mani vs Manicka Gounder (Died) on 6 January, 2021
C.M.A.No.815 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.01.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.815 of 2008
and
M.P No.1 of 2008
V.P.Mani ..Appellant
Vs.
1.Manicka Gounder (died)
2.Balaeaman
3.Jayaraman
4.Sambandan
5.Manoharan ..Respondents
(Respondents 2 to 5 are impleaded
as per the order of this Court in
CMP No.23821 of 2019 dated
06.01.2021)
Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1 of
CPC, to set aside the judgment and decree dated 28.09.2007 in
A.S.No.27 of 2006 on the file of the Subordinate Court, Vellore,
1/10
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C.M.A.No.815 of 2008
remanding and setting aside the well-considered judgment and decree
made in O.S. No.627 of 2001 dated 31.01.2006 on the file of the
Principal District Munsif, Vellore.
For Appellant : Mr.T.R.Rajaraman
For Respondents: Ms.M.Subasree
For Mr.E.Kannadasan
JUDGMENT
The Judgment and Decree passed in A.S.No.27 of 2006 dated
28.09.2007 is under challenge in the present Civil Miscellaneous
Appeal.
2. The appellant is the plaintiff, who instituted the suit for
declaration, recovery of possession and for mesne profits. The suit was
decreed in favour of the plaintiff and the defendant had preferred an
appeal in A.S No.27 of 2006. The First Appellate Court remanded the
matter back to the trial Court on the ground that the metes and bounds of
the suit property was not properly surveyed and for this purpose, an
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C.M.A.No.815 of 2008
Advocate Commissioner has not been appointed. The first Appellate
Court considered both the cross appeal as well as the appeal filed by the
respective parties. The findings of the first Appellate Court reveals that
the survey of the suit property had not been done properly with the
assistance of a Court Commissioner and in such circumstances, the trial
Court ought to have appointed an Advocate Commissioner for the
purpose of ascertaining the metes and bounds of the suit property. For
this reason, the suit was remanded back to the trial Court for the purpose
of re-trial.
3. Order 41 Rule 33 of CPC enumerates Power of Court of
Appeal. Accordingly, the Appellate Court shall have the power to pass
any decree and make any order which ought to have been passed or
made and to pass or make such further or other decree or order as the
case may require, and this power may be exercised by the Court
notwithstanding that the appeal is as to part only of the decree and may
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C.M.A.No.815 of 2008
be exercised in favour of all or any of the respondents or parties,
although such respondents or parties may not have filed any appeal or
objection.
4. Thus, the first Appellate Court is empowered to deal with the
evidences and documents and even a case, some lapses are found in
following the procedures or considering the evidences instead of
remanding the matter back to the trial Court. The first Appellate Court
itself can appoint an Advocate Commissioner or call for the documents
or additional documents and accordingly frame issues and decide the
matter in the first appeal itself. Routine remanding of the matters are not
preferable and such remand will cause greater prejudice to the litigants
and also would cause protraction and therefore, the Courts as far as
possible more specifically, the first Appellate Court shall decide the
matters even in the case of some procedural lapses or even appreciation
of vital documents or otherwise.
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C.M.A.No.815 of 2008
5. This Court is of the considered opinion that remanding of the
matter at one point of view is evasion. The issues have to be decided on
merits by every court of law, eventhough whatsoever under Order 41
Rule 33 CPC stipulates that the first Appellate Court has also exercising
its power of the trial Court, there is no impediment for the first
Appellate Court to entertain and accept the additional documents or
evidences or if necessary, appoint an Advocate Commissioner for the
purpose of appreciating the facts and render complete justice to the
parties to the litigation. Contrary, if the matter is remanded back to the
trial Court, it would prejudice the interest of the parties and further
would cause prolongation of the litigation. Therefore, the first Appellate
Court whenever forms an opinion that certain title documents are not
considered by the trial Court instead of remanding the matter should
have decided the issues itself so as to give quietus to save the judicial
hours also.
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C.M.A.No.815 of 2008
6. The Apex Court also ruled that such routine or mechanical
remand is impermissible and the Courts are bound to decide the issues
on merits in all circumstances and only on exceptional circumstances, as
it is impossible for the Appellate Court to decide the issues, then alone
the case can be remanded and not otherwise. With the Code of Civil
Procedure, the Appellate Court can entertain additional evidence,
amendment of prayer, impleadment of necessary parties and
appreciation of evidences and documents, appointment of Advocate
Commissioner or Surveyor etc., The first Appellate Court is expected
to exercise its powers in accordance with the provisions of the Civil
Procedure Code instead of remanding the matter back to the trial Court.
7. The powers of the Appellate Court are well enumerated in
Section 107 of Civil Procedure Code and the same is reads as under:
107. Powers of Appellate Court - (1) Subject to
such conditions and limitations as may be prescribed, an
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C.M.A.No.815 of 2008
Appellate Court shall have power -
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such
evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall
have the same powers and shall perform as nearly as
may be the same duties as are conferred and imposed by
this Code on Courts of original jurisdiction in respect of
suits instituted therein.
8. When the powers are conferred to the first Appellate Court to
exercise its powers as stated above under Section 107 of CPC, there is
no reason whatsoever for the first Appellate Court to remand the matter
for re-trial before the trial Court. As far as the present appeal is
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C.M.A.No.815 of 2008
concerned, the reason for remand is that the Advocate Commissioner
has not been appointed for the purpose of surveying the suit property
and to find out the metes and bounds of the suit schedule property. The
said exercise can very well done by the first Appellate Court and
therefore, the first Appellate Court is directed to exercise its powers
under Section 107 of Civil Procedure Code and proceed with the appeal
by taking all necessary actions.
9. This being the factum, the judgment and decree dated
28.09.2007 passed in A.S No.27 of 2006 is set aside and the first
Appellate Court, namely, the Subordinate Court, Vellore, is directed to
continue the appeal by providing an opportunity to the parties concerned
and by appointing an Advocate Commissioner to measure the metes and
bounds of the suit property as required and dispose of the appeal on
merits and in accordance with law preferably within a period of six
months from the date of receipt of a copy of this judgment.
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C.M.A.No.815 of 2008
10. Accordingly, the Civil Miscellaneous Appeal No.815 of 2008
stands allowed. No costs. Consequently, connected miscellaneous
petition is also closed.
06.01.2021
(2/2)
uma
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
To
1. The Subordinate Court,
Vellore
2. The Principal District Munsif Court,
Vellore.
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C.M.A.No.815 of 2008
S.M.SUBRAMANIAM, J.
uma
C.M.A.No.815 of 2008
M.P.No.1 of 2008
06.01.2021
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