Madras High Court
S.Kalavathi vs Ramamani on 7 January, 2021
C.M.A.No.1602 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.01.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.1602 of 2014
and
M.P No.1 of 2014
1.S.Kalavathi
2.V.Sampath ..Appellants
Vs.
Ramamani ..Respondent
Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of
CPC, to set aside the decree and judgment dated 04.12.2013 made in
A.S No.7 of 2012 on the file of the Principal Subordinate Judge,
Krishnagiri and to confirm the decree and judgment dated 09.01.2009
passed in O.S No.112 of 2006 on the file of the District Munsif,
Krishnagiri.
For Appellants : Mr.M.Ganesan
For Respondent : Mr.N.E.A.Dinesh
1/10
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C.M.A.No.1602 of 2014
JUDGMENT
The judgment and decree dated 04.12.2013 passed in A.S No.7 of
2012 is under challenge in the present Civil Miscellaneous Appeal.
2. The appellants are the defendants in the suit and the respondent
instituted the suit for permanent injunction. The suit was dismissed and
the respondent had filed first appeal in A.S No.7 of 2012. The first
Appellate Court remanded the matter back to the trial Court for re-trial
and challenging the same, the present Civil Miscellaneous Appeal is
filed.
3. The question arises whether the remanding of the matter is in
accordance with the established principles or not?
4. Section 107 of CPC enumerated that the Appellate Court shall
have the power to determine the case finally. Even the Appellate Court
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C.M.A.No.1602 of 2014
is empowered to take additional evidence or to require such other
evidence to be taken.
5. At the outset, it is contended that 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. Thus, the appeal suit is
in continuation of the original civil suit and the first Appellate Court is
empowered to examine the witnesses by framing additional issues if
necessary instead of remanding the matter back to the trial Court.
Remanding the matter may be an easy way for the Courts. However,
such practice never be appreciated in the absence of sound reasons and
on concrete grounds. Mere remanding the matter would cause greater
prejudice to the parties to the litigation. In the event of remand, the
parties again has to go to the trial Court and contest the case and
thereafter, file an appeal before the first Appellate Court. The said
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C.M.A.No.1602 of 2014
process would take long time and therefore, such protraction and
prolongation to the litigant are to be avoided as far as possible.
5. Keeping the above principle in mind, it is under the considered
order impugned in the present Civil Miscellaneous Appeal, the findings
of the Appellate Court in para 15 of the judgment reads as under:
15(i) An overall appraisal shows that plaintiff and 1st
defendants are sisters. 2nd defendant is the husband of 1st
defendant. Further, both the parties admitted that they are
in joint possession and enjoyment of the suit property. As
per the sale deed dated 10.10.2005 plaintiff agreed to sell
the suit property to the 2nd defendant, for a sale
consideration of Rs.81,000/- and also plaintiff received
Rs.76,000/- as advance with condition within 10 months
from the date of sale deed after receiving remaining amount,
she would complete the sale proceedings. Further, from the
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C.M.A.No.1602 of 2014
date of above said agreement, i.e, 10.10.2005, plaintiff left
the possession to the 2nd defendant. From that date,
defendants 1 and 2 are in possession of the said property.
Even though 2nd defendant approached the plaintiff and
asked her to comply the sale agreement but plaintiff has
dragged the same by saying false reasons. In order to cheat
the defendant, plaintiff has filed the suit.
(ii) Of course, it is settled law that agreement of sale
does not confer title and therefore, the agreement holder
even assuming that the agreement is valid does not acquire
any title to the property. But, defendants have not raised
any claim regarding the title of suit property and admitted
that suit properties are belong to plaintiff. At the same time,
once plaintiff has received the advance amount to sell the
property and left the possession to the defendants on the
basis of sale agreement. Further, plaintiff has not proved
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C.M.A.No.1602 of 2014
his plea that the said sale agreement is prepared
fraudulently and the signature found in the sale agreement is
not by the plaintiff. So, it is very clear that the plaintiff has
not proved her case through oral and documentary evidence,
at the same time, defendants did no. Therefore, this Court,
considers that the suit is to be remanded back to the trial
Court for fresh trial”.
6. Perusal of the findings reveal that the sale agreement disputed
was prepared fraudulently and the signature found in the sale agreement
was not by the plaintiff. The Appellate Court arrived a conclusion that
the plaintiff has not proved her case through oral and documentary
evidence. At the same time, the defendants did so. While arriving such
a conclusion, the first Appellate Court remanded the matter back to the
trial Court for fresh trial. The reason for remand is ambiguous. There is
no clear finding for the purpose of remanding the matter back to the trial
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C.M.A.No.1602 of 2014
Court for re-trial. Such clarifications or doubts with reference to the
issues can be decided by the first Appellate Court if necessary, by
framing additional issues. Thus, instead of clarifying the doubts
regarding the facts or directing the parties to give additional evidence or
otherwise, the first Appellate Court unnecessarily remanded the matter
back for re-trial.
7. This being the factum, this Court is of the considered opinion
that the first Appellate Court has committed an error in remanding the
matter back to the trial Court for fresh trial. It would cause greater
prejudice to the interest of the parties to the litigation and therefore, the
judgment and decree dated 04.12.2013 passed in A.S No.7 of 2012 is set
aside. The appeal suit is remanded back to the first Appellate Court for
deciding the issues on merits and in accordance with law, if necessary
by framing additional issues or by examining the witnesses or evidences
as expeditiously as possible and preferably within a period of six months
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C.M.A.No.1602 of 2014
from the date of receipt of a copy of this judgment.
8. The parties are restrained from seeking unnecessary
adjournments. Even in case, adjournments are to be granted on genuine
grounds and the Court should record the reasons. The adjournments on
flimsy grounds are liable to be rejected in limini.
9. In the result, the present Civil Miscellaneous Appeal No.1602
stands allowed. No costs. Consequently, the connected Miscellaneous
Petition is closed.
07.01.2021
uma
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
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C.M.A.No.1602 of 2014
To
1.The Principal Subordinate Judge
Krishnagiri
2.The District Munsif
Krishnagiri
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1602 of 2014
S.M.SUBRAMANIAM, J.
uma
C.M.A.No.1602 of 2014
M.P.No.1 of 2014
07.01.2021
https://www.mhc.tn.gov.in/judis/
