Madras High Court
G. Rajendran vs P.C.Ramalingam on 8 January, 2021
C.M.A.No.2581 of 2019 and
C.M.P.No.12384 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.2581 of 2019
and
C.M.P.No.12384 of 2019
G. Rajendran .. Appellant
Versus
P.C.Ramalingam .. Respondent
Prayer: Civil Miscellaneous Appeal filed under Order XLIII Rule 1 of
C.P.C., against the judgment and decree passed in A.S.No.15 of 2017, on the
file of the Subordinate Court, Arani, dated 26.04.2019.
For Appellant : Mr. R. Subramanian
for Mr. C. Jagadish
For Respondent : Mr. M. Sriram
1/8
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2581 of 2019 and
C.M.P.No.12384 of 2019
JUDGMENT
The decree and judgment dated 26.04.2019 passed in A.S.No.15
of 2017, is under challenge in the present civil miscellaneous appeal.
2. The plaintiff is the appellant and the suit was instituted for
declaration. The suit dismissed against the plaintiff and the appeal suit in
A.S.No.15 of 2017 was instituted by the appellant to set aside the decree
passed in O.S.No.38 of 1990. The first appellate Court though adjudicated
the issues as well as the merits in detail, remanded the matter back to the
trial Court for reconsideration. Attacking, the said judgment, the learned
counsel for the appellant reiterated that such a remand is improper and the
first appellate Court committed an error in not deciding the issues on merits.
It is contended that the issues are decided in favour of the the appellant by
the first appellate Court and despite the findings in favour of the appellant,
the matter was remanded back to the trial Court for re-trial. Thus the appeal
is to be allowed.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2581 of 2019 and
C.M.P.No.12384 of 2019
3. The learned counsel for the respondent objected the said
contention by stating that the suit was dismissed rightly. The trial Court
considered the issues in right perspective and dismissed the suit. The
respondent is confident in view of the fact that the trial Court's judgment is
in consonance with law. Thus the respondent has not preferred any appeal
against the order of remand. It is contended that the first appellate Court
ought not to have given findings in detail, when a decision is taken to
remand the matter. Therefore, the first appellate Court has committed an
error in remanding the matter back. In fact, the appeal suit itself would have
been dismissed.
4. This Court is of the considered opinion that the appellant to the
first appellate Court, elaborately discussed the facts and circumstances as
well as the findings of the trial Court made with reference to the documents
and evidences produced by the respective parties to the suit. Having
considered all these documents, evidences as well as the issues, the first
appellate Court should not have remanded the matter back, but should have
decided the appeal suit on merits.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2581 of 2019 and
C.M.P.No.12384 of 2019
5. All the suits and the appeal suits ought to be decided on merits.
Remand is an exception. Only on certain limited grounds, the cases ought to
be remanded back for re-trial. The appellate Court is vested with the
powers to receive additional documents, take evidence and examine the
witnesses, then such a power is vested with the first appellate Court under
the provisions of the C.P.C., the first appellate Court ought to have avoided
such unnecessary remanding of the cases to the trial Court which would
cause greater prejudice to the interest of the parties. Remanding a case
would take longer time for reaching finality. Parties have to re-agitate the
matter again before the Civil Court from which an appeal is preferred. Such
a circumstances normally would lead to frustration and therefore, the
remand is to be made only on exceptional circumstances where the suit was
decided only based on preliminary issues. Once the suit is adjudicated on
merits and a judgment is delivered then the first appellate Court is bound to
decide the matter on merits. Even, if there is a doubt on merits, if required,
by receiving additional documents or by examining witnesses and grant
permission for cross examination. All such exercise may be done by the
first appellate Court, the appeal suit is the continuation of the original suit.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2581 of 2019 and
C.M.P.No.12384 of 2019
Therefore, the first appellate Court is empowered to all such examination
and consideration for the purpose of reaching finality and to provide
complete justice to the parties concerned.
6. As far as the present appeal is concerned, perusal of the judgment
of the first appellate Court reveals that the merits are elaborately considered
and discussed by the first appellate Court. However, mainly on the ground
that an issue was not framed if at all the issue was not framed by the trial
Court it is well in the powers of the first appellate Court to frame the issue
and if, necessary take evidence and decide the matter on merits. This being
the settled principles, the first appellate court has committed an error in
remanding the matter back. Accordingly, the judgment and decree dated
26.04.2019 passed in AS.No.15 of 2017 is set aside. C.M.A.No.2581 of
2019 is allowed. The appeal suit in A.S.No.15 of 2017 is restored and the
first appellate Court is directed to dispose of the appeal suit as expeditiously
as possible and preferably, within a period of six months from the date of
receipt of a copy of this order. If parties to the appeal suit seek unnecessary
adjournments, the first appellate Court shall reject all such adjournments
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2581 of 2019 and
C.M.P.No.12384 of 2019
sought for on flimsy grounds. Even if adjournments are to be granted on
valid 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.2581 of 2019 and
C.M.P.No.12384 of 2019
To
The Subordinate Court,
Arani.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2581 of 2019 and
C.M.P.No.12384 of 2019
S.M.SUBRAMANIAM,J.
AT
C.M.A.No.2581 of 2019 and
C.M.P.No.12384 of 2019
08.01.2021
https://www.mhc.tn.gov.in/judis/
