Madras High Court
Safeel Ahmed Sahib vs Mohammed Yusuf Sahib on 7 January, 2021
C.M.A.No.2704 of 2016
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.2704 of 2016 and
C.M.P.No.19489 of 2016
Safeel Ahmed Sahib ... Appellant
Vs.
Mohammed Yusuf Sahib ... Respondent
PRAYER: Civil Miscellaneous Appeal filed under Order 43 Rule 1 (u)
of CPC, against the Judgment and Decree, dated 23.03.2016 made in
A.S.No.12 of 2014 on the file of the Court of the Subordinate Judge,
Vaniyambadi, setting aside the Judgment and Decree, dated 28.02.2014,
made in O.S.No.141 of 2007 on the file of the Court of the Principal
District Munsif-cum-Judicial Magistrate Court, Vaniyambadi and
remanding the matter to the trial Court.
For Appellant : Mr.M.V.Krishnan
For Respondent : Mr.E.M.K.S.Siddharthar,
Legal Aid Counsel
*****
JUDGMENT
The plaintiff is the appellant in the present appeal and the suit was
instituted for permanent injunction. The suit was decreed in favour of
the plaintiff. Thereafter, the defendant filed A.S.No.12 of 2014 before
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C.M.A.No.2704 of 2016
the Subordinate Judge, Vaniyambadi. The first appellate Court
remanded the matter back for re-trial on the ground that the trial Court
has not framed necessary issues regarding validity of gift deed and title.
2.In fact the suit was contested between the parties and the
plaintiff filed documents also. If at all there is any omission regarding
the framing of issues by the trial Court, the first appellate Court is well
in its power to frame such additional issues and take evidence if
necessary and decide the matter finally. Contrarily, on such trivial
grounds, the matter cannot be remanded back to the trial Court and in
the event of such remand, the same would cause great prejudice to the
interest of the parties. In the event of remanding the matter, re-trial is to
be conducted by the trial Court and the parties would suffer and again an
appeal is to be filed by either of the parties. Thus, the dispute will
continue for years together and such practice cannot be appreciated by
this Court. The appeal suit is the continuation of the original suit,
therefore the first appellate Court is empowered to frame additional
issues, take evidence if there is any omission on the part of the trial
Court and decide the issues on merits so as to resolve the dispute
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C.M.A.No.2704 of 2016
between the parties. By remanding the matter, greater hardship is
caused to the parties and they will have to once again adjudicate the
matter before the trial Court and again file an appeal for the purpose of
resolving the disputes. Such repeated proceedings are not preferable.
Contrarily, the first appellate Court can fill the gaps if any and decide
the issues on merits in order to provide complete justice to the parties.
3.Section 107 C.P.C., enumerates the powers of the appellate
Court. The appellate Court shall take additional evidence or require
such evidence to be taken. Even under Order 41 Rule 24 of the Code of
Civil Procedure, where evidence on record is sufficient, the appellate
Court may determine the case finally. The provision states that 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.
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C.M.A.No.2704 of 2016
4.Order 20 Rule 5 of the Code of Civil Procedure contemplates
the Court to state its decision on each issue. The provision reads that the
suits in which issues have been framed, the court shall state its finding
or decision, with the reasons there for, upon each separate issues, unless
the finding upon any one or more of the issues is sufficient for the
decision of the Suit. Therefore, it is not necessary that all the issues
framed by the trial Court are to be discussed elaborately. In all
circumstances when the first issue which is vital to continue the suit
proceedings are decided in either way, then the Court can arrive a
conclusion for the purpose of deciding the suit itself.
5.For example in the suit for specific performance, agreement for
sale is a vital document which is relied upon for the purpose of granting
the relief of specific performance. In the absence of the sale agreement,
it is not possible for the Courts to grant relief of specific performance.
Thus, if the sale agreement is found to be null and void or fraudulent or
fabricated and the factum is established with strong evidence, the trial
Court is empowered to decide the suit on such issues without going into
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C.M.A.No.2704 of 2016
the further discussion with reference to the other issues of readiness and
consideration etc. Such a procedure is already approved by the Code of
Civil Procedure. Therefore, the first Appellate Court is wrong in
arriving the conclusion that the trial Court must decide all the issues
elaborately even after arriving at a conclusion that the suit sale
agreement is invalid and fabricated.
6.Why the powers are conferred on the first appellate Court, is in
view of the fact that under order 41 rule 33 of the Code of Civil
Procedure, and under Section 107 C.P.C., the appeal suit is the
continuation of the original suit proceedings and therefore, all the
powers vested on the original Court of jurisdiction may be exercised by
the first appellate Court in order to resolve the disputes in a complete
manner. This being the principles to be followed, this Court is of the
considered opinion that the matters cannot be remanded on certain
trivial issues. As far as possible the Courts are bound to decide the
matter and pass a final judgment. Remanding of the matter may be an
easy way out for the Courts, but this Court is not inclined to appreciate
such way of disposal of the cases. Thus in all circumstances, the Courts
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C.M.A.No.2704 of 2016
are bound to consider the issues as a whole and attempt to provide
complete justice to the parties. Contrarily by remanding the matter, the
parties are made to suffer further and the long pendency would cause
denial of justice to the either of the parties. This being the principles to
be followed, the judgment and decree dated 23.03.2016 passed in
A.S.No.12 of 2014 is set aside and the Civil Miscellaneous Appeal
stands allowed. The appeal suit is remanded back to the first Appellate
Court for deciding the issues if necessary by framing additional issues
and after taking evidence and pass final orders on merits and in
accordance with law. The said exercise is directed to be done by
affording opportunity to all the parties and preferably within a period of
six months from the date of receipt of a copy of this order.
7.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 readily by all Courts. The parties cannot be
given privilege of getting adjournments for their benefit in order to
prolong and protract the issues. Thus, the first appellate Court is bound
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C.M.A.No.2704 of 2016
to consider all these aspects and dispose of the cases on merits and in
accordance with law. No costs. Consequently, connected miscellaneous
petition is closed.
07.01.2021
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
vv2
To
1.The Subordinate Court,
Vaniyambadi, Vellore District.
2.The Principal District Munsif cum Judicial Magistrate Court,
Vaniyambadi.
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C.M.A.No.2704 of 2016
S.M.SUBRAMANIAM, J.
vv2
C.M.A.No.2704 of 2016 and
C.M.P.No.19489 of 2016
07.01.2021
https://www.mhc.tn.gov.in/judis/
