Madras High Court
Lakshmi vs Lakshmi on 8 January, 2021
C.M.A.No.147 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.01.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.147 of 2007
and
M.P No.1 of 2007
1.Lakshmi
2.Gowrishankar
3.Saraswathi ..Appellants
Vs.
1.Lakshmi
2.Radhamani ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1-U of
CPC, to set aside the judgment and decree in A.S.No.17 of 2006 dated
16.10.2006, on the file of the Principal District Judge, Erode remanding
O.S No.676 of 2000 dated 11.08.2004, on the file of the 2nd Additional
Sub Judge, Erode.
For Appellants : Mr.T.Karthik Srinath
For Respondents: No Apppearance
1/10
https://www.mhc.tn.gov.in/judis/
C.M.A.No.147 of 2007
JUDGMENT
The Civil Miscellaneous Appeal on hand is preferred against the
judgment and decree dated 06.10.2006 passed in A.S No.17 of 2006.
2. The defendants are the appellants in the present appeal. The
suit is for partition and it was decreed in favour of the
plaintiffs/respondents. The defendants filed A.S No.17 of 2006. The
first Appellate Court remanded the matter back for re-trial for the
purpose of giving findings for all the issues separately and to dispose of
the suit within a period of three months. Challenging the said
judgment, the present appeal is filed.
3. The contention of the appellants is that the trial Court itself
considered all the issues and delivered a judgment on merits. Whileso,
there is no other reason whatsoever to remand the matter to the trial
Court for re-consideration. Thus, the first Appellate Court has
https://www.mhc.tn.gov.in/judis/
C.M.A.No.147 of 2007
committed an error in sending back the matter for re-trial.
4. Remanding the matter back to the original Court may be an
easy way out for the Appellate Courts, however, such a procedure in the
absence of any sound principles cannot be appreciated by the High
Courts. The Courts are expected to be cautious while remanding the
matter. When the Courts are vested to the power to decide the matter on
merits in all circumstances, such Courts are expected to exercise its
power in order to provide complete justice to the parties who are all
approaching the Court of law. Contrarily, remanding the matter back
would lead to prolongation and would cause injustice on account of long
delay in delivering the judgment. Speedy disposal of the cases are
imminent as citizen of our great nation are slowly loosing trust on the
judicial system more specifically in the matter of civil litigations. The
litigants are mostly frustrated on account of long pendency of civil cases
and appeals before the Courts. In most of the civil litigations, the person
https://www.mhc.tn.gov.in/judis/
C.M.A.No.147 of 2007
who instituted the suit may not be alive to see the light of the same.
When the matter is decided, the practice of prolongation of the civil
litigation is to be cut short by disposing of the matter in the speedy
manner and by avoiding such unnecessary remands and unwanted
adjournments. The practice of taking adjournments on flimsy grounds
are to be declined by the Court in all circumstances. The Courts are
expected to be vigilant in disposing of the matter especially when the
civil suits are pending for long years.
5. 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
be exercised in favour of all or any of the respondents or parties,
https://www.mhc.tn.gov.in/judis/
C.M.A.No.147 of 2007
although such respondents or parties may not have filed any appeal or
objection.
6.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.
7. Order 20 Rule 5 of the Code of Civil Procedure contemplates
https://www.mhc.tn.gov.in/judis/
C.M.A.No.147 of 2007
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.
8. 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
https://www.mhc.tn.gov.in/judis/
C.M.A.No.147 of 2007
Court is empowered to decide the suit on such issues without going into
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.
9. In view of the facts and circumstances of the case, the first
Appellate Court is empowered to decide the issues on merits even by
framing additional issues or by examining documents or witnesses.
Thus, it is not necessary to remand the matter back to the trial Court
which would cause great prejudice to the great interest of the parties.
10. Accordingly, the judgment and decree dated 16.10.2006
passed in A.S No.17 of 2006 is set aside and the present Civil
https://www.mhc.tn.gov.in/judis/
C.M.A.No.147 of 2007
Miscellaneous Appeal No.147 of 2007 stands allowed. No costs. The
matter is remanded back to the first Appellate Court for disposing the
first appeal on merits and in accordance with law and by affording
opportunities to all the parties concerned. Consequently, the connected
Miscellaneous Petition is closed.
11.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.
08.01.2021
uma
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
https://www.mhc.tn.gov.in/judis/
C.M.A.No.147 of 2007
To
1.The Principal District Judge
Erode
2. The II Additional Subordinate Judge
Erode.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.147 of 2007
S.M.SUBRAMANIAM, J.
uma
C.M.A.No.147 of 2007
M.P.No.1 of 2007
08.01.2021
https://www.mhc.tn.gov.in/judis/
