Madras High Court
S.Palanisamy vs / on 18 January, 2021
C.M.A.Nos.3451 & 3438 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.01.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.A.Nos.3451 & 3438 of 2012
and
M.P.Nos.1 & 1 of 2012
Arulmighu Sulaikal Mariamman
Temple, Bisil Karuvalur Mariamman and Mahaliamman Temples
Rep.by its Trustees
1.S.Palanisamy
2.S.M.Palanisamy
Erankattupalayam
Nallur Village,
Sathyamangalam Taluk,
Erode District. .. Appellant in C.M.A.No.3438 of 2012
2.S.Palanisamy ...A1 in C.M.A.No.3451 of 2012
3.S.M.Palanisamy . ..A2 in C.M.A.No.3451 of 2012
vs.
1.Thangaraj @ Marannan ...R1 in C.M.A.No.3438 of 2012
2.Kariammal ...R2 in C.M.A.No.3438 of 2012
3.Velusamy ...R3 in C.M.A.No.3438 of 2012
R2 in C.M.A.No.3451 of 2012
4.Sarojini ...R4 in C.M.A.No.3438 of 2012
R1 in C.M.A.No.3451 of 2012
1/10
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C.M.A.Nos.3451 & 3438 of 2012
5.President,
Karapadi Panchayat Board,
Karapadi Village and Cusba,
Sathyamangalam Taluk,
Erode District. ...R5 in C.M.A.No.3438 of 2012
6. Rajendran ...R3 in C.M.A.No.3451 of 2012
7.Subramaniam ...R4 in C.M.A.No.3451 of 2012
COMMON PRAYER : Civil Miscellaneous Appeals are filed under Order
43 Rule 1(u) of the Civil Procedure Code, against the judgment and decree
made in A.S.Nos.40 & 45 of 2011 on the file of the Sub-ordinate Judge,
Sathyamangalam dated 06.09.2012 reversing the judgment and decree in
O.S.Nos.34 & 157 of 2009 dated 08.09.2011 on the file of the District
Munsif Court, Sathyamangalam and remanding back to the Lower Court.
For Petitioner : Mr.R.T.Doraisamy
in both petitions
For Respondent : Mr.S.Parthasarathy
in C.M.A.No.3438 of 2012 for RR2 & 4
Batta due for RR1, 3 & 5
For Respondent : Mr.S.Parthasarathy
in C.M.A.No.3451 of 2012 for R1
Batta due for RR1, 2 & 4
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C.M.A.Nos.3451 & 3438 of 2012
COMMONORDER
The Judgment and Decree dated 06.09.2012 passed in A.S.Nos.40 &
45 of 2011 is under challenge in the present Civil Miscellaneous Appeals.
2. Two suits were instituted both by the appellant and the
respondents. Both suits were partly decreed. Against which, the respective
parties filed A.S.Nos.40 & 45 of 2011. The first Appellate Court
adjudicated the facts and circumstances as well as the grounds raised and set
aside the judgment of the trial Court and remanded the matter back for fresh
disposal.
3. The first Appellate Court remanded the matter back mainly on the
ground that “after curing the infirmity in the deposition of P.W.1 and P.W.3
in O.S.No.34 of 2009 and to get the Will of Nanjappa gounder dated
19.10.1987 marked by the parties by allowing them to let in further
evidence regarding all issues and to consider the said Will of Nanjappa
Gounder dated 19.10.1987 or if the said Will of Nanjappa Gounder dated
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C.M.A.Nos.3451 & 3438 of 2012
19.10.1987 is not marked by the parties inspite of time granted to them,
also to consider the same and to dispose the suit afresh at the earliest”.
4. This Court has to examine the reasons for remanding the matter back
for re-trial before the trial Court by the First Appellate Court. Rule 23 of
Order XLI C.P.C contemplates that “where the court from whose decree an
appeal is preferred has disposed of the suit upon a preliminary point and
the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by
order remand the case, and may further direct what issue or issues shall be
tried in this case so remanded, and shall send a copy of its judgment and
order to the Court from whose decree the appeal is preferred, with
directions to readmit the suit under its original number in the register of
civil suits, and proceed to determine the suit; and the evidence (if any)
recorded during the original trial shall, subject to all just exceptions, be
evidence during the trial after remand.”
5. Rule 24 of Order XLI C.P.C enumerates that “ where evidence on
record sufficient, Appellate Court may determine case finally. Where the
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C.M.A.Nos.3451 & 3438 of 2012
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.”
6. The reasons furnished for remand by the first Appellate Court in the
case on hand are to be considered with reference to Rule 23 and Rule 24 of
Order XLI C.P.C. Rule 23 of Order XLI of C.P.C unambiguously held that
when there is no material or evidence on record to consider and pass a final
order in the suit, then alone, the remand is to be ordered. An order of
remand cannot be passed in a mechanical manner. The First Appellate Court
has got powers under Section 107 of C.P.C, to receive additional evidence
and documents and examine the witnesses. When the First Appellate Court
has got powers to examine the witnesses and receive the additional
documents, if any, from the parties, there is no reason whatsoever to remand
the matter back to the trial Court for re-adjudication.
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C.M.A.Nos.3451 & 3438 of 2012
7. The scheme of the provisions for remand enunciated under Rule 23
and 23 A of Order XLI is not complete without reference to the provision
contained in Rule 24 of Order XLI that enables the Appellate Court to
dispose of a case finally without a remand if the evidence on record is
sufficient; notwithstanding that the Appellate Court proceeds on a ground
entirely different from that on which the trial Court had proceeded. Thus,
Rule 24 is also to be kept in mind, while deciding the appeal, whether the
first Appellate Court is right in remanding the matter back to the trial Court
for re-trial and adjudication. Rule 24 shall be invoked when the evidence
and the documents available are sufficient to dispose of the matter, then the
proper course for an Appellate Court is to follow the mandate of Rule 24 of
Order XLI CPC and to determine the suit finally. It is only in such cases
where the decree in challenge is reversed in appeal and a re-trial is
considered necessary that the Appellate Court shall adopt the course of
remanding the case. It is to be understood that an order of remand may not
be passed in a routine manner. An unwarranted order of remand will
elongate the litigation and result inconvenience. Repeatedly approaching the
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C.M.A.Nos.3451 & 3438 of 2012
trial Court will frustrate the mind set of the litigants and the longevity
would cause further expenditure. Therefore, this Court is of the considered
opinion that as far as possible, remanding the matter is to be avoided, if the
evidence or documents available on record are sufficient to decide the case.
The First Appellate Court is expected to decide the issues on merits and
pass final orders. In the absence of any materials on record to decide those
issues, then alone, the first Appellate Court is empowered to adopt course
contemplated for remand under Order XLI Rule 23 and Rule 23(A) of
C.P.C.
8. Considering the reasons adopted for the purpose of remanding the
matter back by the first Appellate Court, this Court is of the considered
opinion that curing the infirmity in the depositions of P.W.1 and P.W.3 in
O.S.No.34 of 2009 shall be done by the First Appellate Court itself. Such
curing is permissible and well within the powers of the first Appellate
Court, if necessary, by taking further evidence or examining the witnesses
or receiving the additional documents. In respect of Will dated 19.10.1987,
either of the parties are at liberty to file the same as additional documents
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C.M.A.Nos.3451 & 3438 of 2012
before the first Appellate Court and take evidence, if necessary. Such
exercise may be done by the first Appellate Court in order to avoid pro-
longevity of the litigation. The defects occurred in the deposition of P.W.1
and P.W.3 may be cured and if necessary, additional documents including
the Will can be examined by the First Appellate Court in order to avoid
further delay. Accordingly, the First Appellate Court is directed to consider
all the grounds raised for remand and take evidence, if necessary, cure
defects occurred in the depositions of P.W.1 and P.W.3 and accordingly,
proceed with the matter and decide the first appeal on merits and in
accordance with law.
9. The parties to the litigations are entitled for an opportunity to defend
their case in the manner known to law. Under these circumstances, the
judgment and decree dated 06.09.2012 passed in A.S.Nos.40 & 45 of 2011
stand set aside and the matter is remanded back to the First Appellate Court
for re-consideration and decide the appeal suit on merits and in accordance
with law by affording opportunity to all the parties concerned. The First
Appellate Court is requested to dispose the appeal suit as expeditiously as
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C.M.A.Nos.3451 & 3438 of 2012
possible preferably within a period of six months from the date of receipt of
a copy of this Order. The parties to the appeal suits are directed to co-
operate for earlier disposal of the suit.
10. Accordingly, the Civil Miscellaneous Appeal stand allowed.
No costs. Consequently, connected miscellaneous petition are also closed.
18.01.2021
Speaking Order/Non-Speaking Order.
Internet : Yes/No.
Index: Yes/No.
ssb
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C.M.A.Nos.3451 & 3438 of 2012
S.M.SUBRAMANIAM, J.
ssb
To
1. Sub-ordinate Judge, Sathyamangalam.
2. District Munsif Court, Sathyamangalam.
C.M.A.Nos.3451 & 3438 of 2012
18.01.2021
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