Madras High Court
Ganesan vs K.Ismail Khan on 8 January, 2021
C.M.A.No.368 of 2011
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.368 of 2011
and
C.M.P No.1 of 2011
Ganesan ..Appellant
Vs.
1.K.Ismail Khan
2.Sydhani Bee
3.K.Azeezkhan
4.Zaithun Bee
5.Saminllah Khan
6.Asaithambi
7.Iyyappan
8.Karthikeyan
9.Balamurugan
10.Kaliammal
11.Valli
12.Santhi
13.Thaiyalnayaki
14.Lakshmi
1/12
https://www.mhc.tn.gov.in/judis/
C.M.A.No.368 of 2011
15.Renuka
16.Rajeswari ..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.31 of 2009 dated
30.10.2010 on the file of the learned Principal District Judge, Cuddalore
District, Cuddalore, reversing the judgment and decree dated 28.06.2009
passed in O.S No.3 of 2001 on the file of the learned Subordinate Judge,
Panruti.
For Appellant : Mr. Sabarish
For Mr.S.K.Rakhunathan
For Respondents : Mr.D.Baskar for R1
R2 to R13 - Exparte
R14 to R16 - Not ready in notice
JUDGMENT
The judgment and decree dated 30.10.2006 passed in A.S.No.31
of 2009 is under challenge in the present Civil Miscellaneous Appeal.
2. The first respondent is the plaintiff, who instituted the suit for
partition. The appellant is the ninth defendant in the suit who filed the
https://www.mhc.tn.gov.in/judis/
C.M.A.No.368 of 2011
present appeal. The suit was dismissed. Challenging the dismissal of the
suit, the appeal suit was filed by the first respondent in A.S No.31 of
2009. The first Appellate Court though considered the issues arrived a
conclusion that the trial Court has not gone into the merits of the case.
Para 21, 22 and 23 of the judgment reveals that the first Appellate Court
instead of deciding the issues on merits unnecessarily remanded the
matter back to the trial Court for reconsideration. Non-consideration of
certain documents are points raised in the suit cannot be a ground to
remand the matter. The issues have not considered and not properly
appreciated by the trial Court can be reconsidered by the first Appellate
Court and such powers are vested under Section 107 CPC.
3. This Court is of the considered opinion that unnecessary
remanding of the cases are to be avoided. Only on continuing
circumstances, if the first Appellate Court is unable to decide the matter
on account of certain serious lapses, then alone the cases can be
https://www.mhc.tn.gov.in/judis/
C.M.A.No.368 of 2011
remanded and with reference to all other grounds, the first Appellate
Court can independently decide the issues with reference to the
documents marked or to take further evidence or mark additional
documents and decide the case on merits and in accordance with law.
4. Remanding of the matter would cause greater prejudice to the
interest of the parties. Onceagain the parties re-adjudicate the matter in
the event of remand, such a retrial result in prolongation or protraction
of the litigation. Appeal orders take to reach finality as far as the
dispute raised between the parties are concerned. Thus, Courts as far as
possible must decide the issues on merits in all circumstances.
5. The first Appellate Court is proper and decide the matter even
framing additional issues or conducting evidence or examination of
witnesses including cross examination. The first Appellate Court is
exercising the power of the trial Court for the purpose of deciding the
https://www.mhc.tn.gov.in/judis/
C.M.A.No.368 of 2011
issues and dispose of the first appeal on merits and in accordance with
law. Such powers are vested with the first Appellate Court.
Unnecessary remanding of the matter would cause hardship to the
litigant. Such grounds of non-consideration of the documents in a right
perspective cannot be a ground for remanding the matter back for retrial.
6. The principles in this regard are settled by the Apex Court of
India. In the case of Municipal Corporation, Hyderabad vs. Sunder
Singh reported in 2008 SCC 485, the Hon'ble Supreme Court held that
"A distinction must be borne in mind between diverse powers of
appellate court to pass order of remand. The scope of remand under
Order 41 Rule 23 is extremely limited. The suit was not decided on a
preliminary issue. Order 41 Rule 23 CPC was therefore not available.
On what basis, the secondary evidence was allowed to be led is not
clear. The High Court did not set aside the orders refusing to adduce the
secondary evidence of the Court".
https://www.mhc.tn.gov.in/judis/
C.M.A.No.368 of 2011
7. Above finding is unambiguous that unnecessary remand of the
cases are to be avoided by the Courts. Once the suit was decided based
on a preliminary issue, absolutely there was no adjudication of the issues
with reference to the documents and evidences then alone the cases can
be remanded and not otherwise. In appreciation of facts and evidences
and documents are not at all the grounds for remanding the matter back
for reconsideration.
8.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
https://www.mhc.tn.gov.in/judis/
C.M.A.No.368 of 2011
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.
9.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.
10.For example in the suit for specific performance, agreement for
https://www.mhc.tn.gov.in/judis/
C.M.A.No.368 of 2011
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
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.
11.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
https://www.mhc.tn.gov.in/judis/
C.M.A.No.368 of 2011
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
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.
12. In view of the facts and circumstances, the judgment and
decree dated 30.10.2010 passed in A.S No.31 of 2009 is set aside and
https://www.mhc.tn.gov.in/judis/
C.M.A.No.368 of 2011
the present Miscellaneous Appeal No.368 of 2011 stands allowed. No
costs. The matter is remanded back to the first Appellate Court for
reconsideration of the entire issues by examining the documents and
evidence if required and dispose of the Appeal Suit on merits and in
accordance with law by affording opportunities to the parties concerned.
The said exercise is requested to be done as expeditiously as possible
and preferably within a period of six months from the date of receipt of a
copy of this judgment. Consequently, the connected Miscellaneous
Petition is closed.
13. 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
https://www.mhc.tn.gov.in/judis/
C.M.A.No.368 of 2011
to consider all these aspects and dispose of the cases on merits and in
accordance with law.
08.01.2021
uma
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
To
1.The Principal District Judge
Cuddalore.
2.The Subordinate Judge
Panruti.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.368 of 2011
S.M.SUBRAMANIAM, J.
uma
C.M.A.No.368 of 2011
M.P.No.1 of 2011
08.01.2021
https://www.mhc.tn.gov.in/judis/
