Madras High Court
A.Dharmalingam vs Unknown on 18 January, 2021
C.M.A.Nos.615 & 616 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.01.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.A.Nos.615 & 616 of 2006
and
C.M.P.Nos.2526 and 2527 of 2006
A.Dharmalingam .. Appellant in both petitions
vs.
1.S.Kanagaraj ...R1 in C.M.A.No.615 of 2006
2.S.Selvaraj ...R2 in C.M.A.No.615 of 2006
3.Deivathal ...R3 in C.M.A.No.615 of 2006
4.A.Pappal ...R4 in both petitions
5.A.Senthilkumar ...R5 in both petitions
6.A.Poongodi ...R6 in both petitions
7.M.Subbe Gounder ...R1 in C.M.A.No.616 of 2006
8.Selvaraj ...R2 in C.M.A.No.616 of 2006
9.Kanagaraj ...R3 in C.M.A.No.616 of 2006
COMMON PRAYER : Civil Miscellaneous Appeals are filed under Order
43 Rule 1(4) of the Civil Procedure Code, against the judgment and decree
1/8
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C.M.A.Nos.615 & 616 of 2006
dated 09.11.2004 passed in A.S.Nos.5 & 6 of 2003 on the file of the learned
Additional District Judge(Fast Track Court No.4), Tirupur reversing the
judgment and decree dated 27.04.2000 passed in O.S.Nos.631 of 2005 &
615 of 1995 on the file of the learned District Munsif, Palladam.
For Petitioner : Mr.V.R.Appaswamee
in both petitions For Mr.S.K.Rakhunathan
For Respondent : Mr.S.Kaithamalaikumaran
in C.M.A.No.615 of 2006 for RR1 & 2
Mr.S.Ko1andasamy for R3
No-appearance for RR4 to 6
For Respondent : Mr.S.Kaithamalaikumaran
in C.M.A.No.616 of 2006 for RR1 to 3
No-appearance for RR4 to 6
COMMONORDER
These two Civil Miscellaneous Appeals are filed against the
common judgment dated 09.11.2004 passed in A.S.Nos.5 & 6 of 2003.
2. Two suits were instituted and the appellant herein instituted
O.S.No.615 of 1995 and the respondent instituted O.S.No. 631 of 2005. The
trial Court passed a common judgment on 27.04.2000 decreeing O.S.No.
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C.M.A.Nos.615 & 616 of 2006
615 of 1995 and O.S.No.631 of 2005 was dismissed. Against the common
judgment, both the plaintiffs in the suits filed A.S.Nos.5 & 6 of 2003. The
First Appellate Court considered the issues and passed a common order on
09.11.2004 remanding the matter back to the trial Court.
3. The finding of the first appellate Court for remanding the matter is that
“no issue was framed for adverse possession. On perusal of the records, it
reveals, unfortunately, in both the suits, there was no issue framed for
adverse possession since this issue is a legal issue and which have to be
elaborately dealt with. But since there was no issue framed by the Lower
Court nor in the Appellate Court (Sub-Court), and hence the parties were
not given an opportunity to lead their evidence and to prove adverse
possession”. The first Appellate Court arrived a conclusion that there is no
justification in rendering the judgment and ignoring the above vital legal
issue. Under these circumstances, the suits were remanded back to the trial
Court with a direction to frame the additional issue for adverse possession
and decide the matter by providing an opportunity to all the parties.
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C.M.A.Nos.615 & 616 of 2006
4. Order XLI Rule 23 of C.P.C enumerates 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. 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
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C.M.A.Nos.615 & 616 of 2006
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
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 remanding under Order XLI Rule 23 and Rule 23(A) of
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C.M.A.Nos.615 & 616 of 2006
C.P.C.
6. In the present case, the finding of the First Appellate Court reveals
that in both suits, no issue was framed regarding the adverse possession and
the parties were not provided an opportunity to file their evidence and
documents in respect of the issue of adverse possession. Thus, adjudication
of the suits are absolutely incomplete, therefore, remand is warranted. In the
absence of any evidence and documents regarding the adverse possession,
the first Appellate Court may not be in a position to decide the issue finally.
Thus, this Court is of the considered opinion that the reasons for remand
furnished in the common judgment of the first Appellate Court is candid and
fulfills the components of Order XLI Rule 23 of C.P.C. Accordingly, the
judgment and decree dated 09.11.2004 passed in A.S.Nos.5 & 6 of 2003 are
confirmed and consequently, the Civil Miscellaneous Appeals stand
dismissed. No costs. Consequently, connected miscellaneous petitions are
also closed.
7. The trial Court is directed to dispose the suit as expeditiously as
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C.M.A.Nos.615 & 616 of 2006
possible preferably within a period of 10 months from the date of receipt of
a copy of this Order. 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 in limine by all Courts. The parties cannot be given privilege of
getting adjournments for their benefit in order to prolong and protract the
issues.
18.01.2021
Speaking Order/Non-Speaking Order.
Internet : Yes/No.
Index: Yes/No.
ssb
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.615 & 616 of 2006
S.M.SUBRAMANIAM, J.
ssb
To
1. Additional District Judge(Fast Track Court No.4), Tirupur.
2. District Munsif, Palladam.
C.M.A.Nos.615 & 616 of 2006
18.01.2021
https://www.mhc.tn.gov.in/judis/
