Madras High Court
R.Shantha vs Ramasamy Gounder on 8 January, 2021
C.M.A.No.1619 of 2018
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.1619 of 2018
and
C.M.P No.12873 of 2018
R.Shantha ..Appellant
Vs.
1.Ramasamy Gounder
2.P.S.Subramanian
3.C.Ravichandran
4.C.Ramesh Babu
5.C.Anusyua
6.Saraswathy
7.Rajalakshmi
8.N.Mohan
9.Vimala Jayaraman
10.Malathy Muthukrishnan
11.Usha Ramesh
12.Uma Muthuraman
13.Nagasamy
14.Sridhar
1/12
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C.M.A.No.1619 of 2018
15.Raghavan
16.Balasubramanian
17.Usha
18.Sowmya
19.Subbulakshmi ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of
CPC, to set aside the judgment and decree dated 12.06.2017 in
A.S.No.25 of 2012 on the file of the District and Sessions Court,
Thiruvannamalai reversing the judgment and decree dated 27.06.2012
in O.S No.211 of 1990 on the file of the Additional Sub Court,
Tiruvannamalai.
For Appellant : Mr.D.Rajasekar
For Respondents : Mrs.P.Veena Suresh for R1
R2 to R19 Exparte
JUDGMENT
The judgment and decree dated 12.06.2017 passed in A.S.No.25
of 2012 is under challenge in the present Civil Miscellaneous Appeal.
2. The plaintiff is the appellant in the present appeal. The suit
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C.M.A.No.1619 of 2018
was instituted for specific performance and it was decreed in favour of
the appellant. The defendants filed an appeal suit in A.S No.25 of 2012.
The first Appellate Court remanded the matter back for re-trial mainly
on the ground that the trial Court has not considered the documents as
well as the evidence in the right perspective and therefore, the issues are
to be reconsidered, if necessary by conducting re-examination.
3. The learned counsel for the appellant mainly contended that
the reasons furnished for remanding of the matter is unacceptable in
view of the fact that the remand is to be made only in the suits are to be
decided in the preliminary issues and as far as the present case is
concerned, the trial Court considered the issue and passed orders and the
first Appellate Court ought not to have remanded the matter and ought
to have decided the matter on merits.
4. The learned counsel appearing for the respondent vehemently
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C.M.A.No.1619 of 2018
opposed the matter by stating that the appeal will have to be dismissed
on the ground that the first Appellate Court had given a categorical
finding that the trial Court has committed an error in not ascertaining
the documents or evidences in right perspective. The trial Court ought to
have considered the documents filed by the respondents in the suit.
Contrary, based on the erroneous footing, the suit was decreed in favour
of the appellant and therefore, the first Appellate Court has rightly
remanded the matter back for re-trial and there is no infirmity as such
and accordingly, the appeal is liable to be dismissed.
5. Considering the arguments of the respective learned counsel
appearing on behalf of the appellant as well as the respondents, this
Court is of the considered opinion that Order 41 Rule 23 CPC require
that remand can be made by Appellate Court only for the suit was
decided as a preliminary issue. If the suit is decided on merits by
appreciating the documents and evidences, the first Appellate Court is
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C.M.A.No.1619 of 2018
bound to adjudicate the matter on merits and made a finding based on
the documents on merits. Contrary, remanding of the matte back to the
trial Court would cause greater prejudice to the parties and further
lengthen the duration of the litigation which would cause untold agony
to the parties.
6. The first Appellate Court is empowered to receive additional
documents and take evidence or witnesses if at all required for the
purpose of deciding the issues on merits. This being the legal position,
the first Appellate Court ought not to have remanded the matter back for
retrial on certain unnecessary grounds. The reasons stated in the
judgment of the first Appellate Court is that the trial Court has not
considered the documents and evidences in right perspective and such a
reason is unacceptable and therefore, the order of remand is perverse.
7. Remanding the matter back to the original Court may be an
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C.M.A.No.1619 of 2018
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
eminent as the people in general 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 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
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C.M.A.No.1619 of 2018
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
the civil suits are pending for long years.
8. 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,
although such respondents or parties may not have filed any appeal or
objection.
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C.M.A.No.1619 of 2018
9.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.
10. 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
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C.M.A.No.1619 of 2018
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.
11. 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 the further discussion with reference to the other
issues of readiness and consideration etc. Such a procedure is already
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C.M.A.No.1619 of 2018
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.
12. In view of the facts and circumstances, the judgment and
decree dated 12.06.2017 in A.S No.25 of 2012 is set aside and the
present Miscellaneous Appeal No.1619 of 2018 stands allowed. No
costs. The first Appellant Court is directed to take the appeal suit on file
and hear the matter by affording opportunities to all the parties
concerned and decide the appeal on merits and in accordance with law.
The said exercise is requested to 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.
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C.M.A.No.1619 of 2018
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.
08.01.2021
uma
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
To
1.The District and Sessions Court,
Thiruvannamalai
2.The Additional Sub Court,
Thiruvannamalai
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C.M.A.No.1619 of 2018
S.M.SUBRAMANIAM, J.
uma
C.M.A.No.1619 of 2018
M.P.No.12873 of 2018
08.01.2021
https://www.mhc.tn.gov.in/judis/
