Madras High Court
L. Srinivasan vs Saloni on 8 January, 2021
C.M.A.No.3693 of 2019 and
C.M.P.No.21179 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 08.01.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.A.No.3693 of 2019
and
C.M.P.No.21179 of 2019
L. Srinivasan .. Appellant
Versus
Saloni .. Respondent
Prayer: Civil Miscellaneous Appeal filed under Order XLIII Rule 1 of
C.P.C., to set aside decree and judgment of the appellate Court in
A.S.No.274 of 2017 dated 22.03.2019 on the file of XVI Additional City
Civil Court, Chennai remanding back to the trial Court the suit in
O.S.No.2831 of 2015, order dated 11.08.2017 on the file of XV Assistant
City Civil Court at Chennai.
For Appellant : Mr. G. Senthilkumar
For Respondent : No Appearance
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https://www.mhc.tn.gov.in/judis/
C.M.A.No.3693 of 2019 and
C.M.P.No.21179 of 2019
JUDGMENT
The judgment and decree dated 22.03.2019, passed in
A.S.No.274/2017, is under challenge in the present civil miscellaneous
appeal.
2. The defendant is the appellant in the present appeal. The
respondent instituted a suit for mandatory injunction, the suit was
dismissed. As against the same, the plaintiff filed an appeal suit in
A.S.No.274/2017. The first appellate Court remanded the matter back to the
trial Court for re-consideration merely on the ground that the trial Judge has
not considered certain portion of the evidences both oral and documentary
let in by one party. Thus, the matter was remanded back. Challenging the
said order passed in the appeal suit, the present civil miscellaneous appeal is
filed.
3. The learned counsel for the petitioner states that the trial Court
elaborately considered the issues and dismissed the suit. Thus, the first
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3693 of 2019 and
C.M.P.No.21179 of 2019
appellate Court ought not to have remanded the matter back for re-
consideration. Instead, the first appellate Court, should have decided the
matter on merits. Thus, the order of the first appellate Court is liable to be
set aside.
4. This Court is of the considered opinion that all the appeal is
sought to be decided on merits and in accordance with law. Remand is an
exception. A suit can be remanded back to the trial Court by the first
appellate Court only if, the suits are decided based on the preliminary issue.
Non appreciation of documents and evidences cannot be a ground to remand
the matter back to the trial Court. Such appreciation can be reviewed by the
first appellate Court itself and a findings can be given so as to give quietus
to the issues. Contrarily, remanding the matter would cause greater
prejudice to the interest of the parties and the suits will be prolonged and
protracted. The litigants cannot go back to the trial Court and re-adjudicate
the issues which would cause not only frustration but would prolong the
duration of litigation. Therefore, the appellate Courts are bound to be
cautious while remanding the matter back to the trial Court for re-
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3693 of 2019 and
C.M.P.No.21179 of 2019
consideration. As far as possible, all the issues are to be decided by the first
appellate Court if, there is any omission regarding appreciation of evidence
and documents.
5. Under Section 107 C.P.C., the appellate Court got powers to
receive additional documents and to examine witnesses. Even if there is a
omission identified in a judgment of the trial Court, the first appellate Court
can very well accept additional documents or examine the witnesses and
cross examine the same and dispose of the appeal suit on merits and in
accordance with law by affording opportunity to all the parties to the
litigation. In this regard, Order 41 Rule 33 is also clear and therefore, the
powers of the appellate Court is not limited in examining the witnesses and
accepting the additional documents if any to be filed. This being the widest
scope provided in the code of civil procedure for the appellate Court to
adjudicate the issues on merits, there is no reason whatsoever to remand the
matter back to the trial Court for re-consideration. Thus, the first appellate
Court has committed an error in remanding the matter back.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3693 of 2019 and
C.M.P.No.21179 of 2019
6. Accordingly, the judgment and decree dated 22.03.2019, passed in
A.S.No.274/2017 is set aside. C.M.A.No.3693/2019 is allowed. The first
appeal is restored and the first appellate Court is directed to dispose of the
appeal as expeditiously as possible and preferably, within six months by
affording opportunity to all the parties, on merits and in accordance with
law. Parties to the appeal suit are restrained from seeking unnecessary
adjournments if at all adjournments are to be granted on genuine grounds,
the reasons are to be recorded.
7. With these observations, the civil miscellaneous appeal stands
allowed. No costs. Consequently, the connected miscellaneous petition is
closed.
08.01.2021
AT
Index: Yes/ No
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3693 of 2019 and
C.M.P.No.21179 of 2019
S.M.SUBRAMANIAM,J.
AT
To
The XVI Additional City Civil Court,
Chennai.
C.M.A.No.3693 of 2019 and
C.M.P.No.21179 of 2019
08.01.2021
https://www.mhc.tn.gov.in/judis/
