Madras High Court
The Executive Officer vs Dr.Bakthavatchalam on 9 March, 2021
C.M.A.No.2427 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.A.No.2427 of 2010
The Executive Officer,
Arulmigu Badahrakaliamman Temple,
Andhiyur,
Bhavani Taluk,
Erode District. .. Appellant
vs.
1.Dr.Bakthavatchalam
2.The Arulmigu Badahrakaliamman Temple,
Andhiyur,
Renovation Committee rep.by its President,
A.K.Venkatachalam,
Andhiyur Town. .. Respondents
PRAYER : Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of
C.P.C, against the order of remand dated 29.04.2010 made in A.S.No.43 of
2007 on the file of the Additional District Judge, Fast Track Court No.4,
Bhavani, reversing the judgment and decree dated 30.07.2007 made in
O.S.No.430 of 2005 on the file of the Principal District Munsif Court,
Bhavani.
1/7
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C.M.A.No.2427 of 2010
For Appellant : Mr.D.Sathiya
for M/s.Zeenath Begum
For Respondents :Mr.V.Balamurugane for R1
R2-Given up
ORDER
The Judgment and Decree dated 29.04.2010 passed in A.S.No.43 of
2007 is under challenge in the present Civil Miscellaneous Appeal.
2. The respondent is the plaintiff in O.S.No.430 of 2005 and the suit was
instituted for declaration and permanent injunction. The suit was decreed in
part. Challenging the said decree, the appellant in the present appeal filed an
appeal in A.S.No.43 of 2007. The appeal suit was adjudicated by the First
Appellate Court and the matter was remanded back to the Trial Court on the
ground that an additional chief examination is to be taken and accordingly,
the trial Court was directed to permit additional chief examination and
thereafter, consider the facts and dispose of the suit.
3. The learned counsel appearing on behalf of the appellant/Temple
mainly contended that even in case such examination is required, it is only
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C.M.A.No.2427 of 2010
an additional chief examination which can be done by the First Appellate
Court itself instead of remanding the matter back to the trial Court which
would cause hardship to the parties. Further, the case will be prolonged.
3(a) Learned counsel for the respondent raised objection by stating that
the First Appellate Court remanded the matter for the purpose of taking
additional chief-examination and, therefore, there is no infirmity as such.
This apart, additional chief-examination is to be conducted elaborately and
the chief-examination also is required. Thus, the First Appellate Court
remanded the matter on account of infirmities and there is no error apparent
as such, and this appeal is liable to be rejected.
4. This Court is of the considered opinion that all the appeal suits are to
be disposed of finally. Under Order XLI Rule 23 of C.P.C contemplates that
the Appellate Court shall remand the matter back to the trial Court.
However, such remand can be made only if the suit was decided on
preliminary issues. Once the suit was disposed of on merits by considering
the documents and evidence made available, then the Appellate Court cannot
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C.M.A.No.2427 of 2010
remand the matter back to the trial Court. Omission or commission, if any,
can very well be done by the First Appellate Court. Section 107 of C.P.C.
empowers the Appellate Court to receive the additional documents and to
examine the witnesses, if required. Order XLI Rule 24 also stipulates that
“Where evidence on record sufficient, Appellate Court may determine case
finally - 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 Appellate
Court proceeds”. Thus, in all cases, the Appellate Court is expected to
dispose of the appeal suits finally except when the trial Court disposed of the
suit on certain preliminary issues without considering the documents and
evidence made available.
5. Remand is an exception. Rule contemplates that the appeal is to be
decided finally. Thus, the order of remand is to be passed only on
exceptional circumstances, where it is not possible for the Appellate Court
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C.M.A.No.2427 of 2010
within the provision of the Code of Civil Procedure to dispose of the appeal
suit. The various circumstances under which the appeal suits shall be
decided by the Appellate Court has been enumerated in Order 41 Rule 23,
23(A), 24 and 25. Therefore, the Appellate Court must be cautious while
remanding the matter back to the trial Court and unnecessarily remanding
the matter, undoubtedly, would cause prejudice to the interest of the parties.
This being the principles to be followed, the findings of the First Appellate
Court that the additional chief examination is to be conducted or additional
documents are to be received cannot be an appropriate ground for
remanding the matter back to the trial Court. Contrarily, such an exercise
can be done by the First Appellate Court in order to complete the trial and
pass final order on merits and in accordance with law and by affording
opportunity to all the parties concerned. Thus, this Court is of the considered
opinion that the First Appellate Court is empowered to take additional chief
examination or accept additional documents and permit the petitioner to
examine and cross-examine the witnesses, if necessary and by affording
opportunity to all the parties and thereafter, decide the matter on merits and
in accordance with law.
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C.M.A.No.2427 of 2010
6. In this view of the matter, the judgment and decree dated 29.04.2010
passed in A.S.No.43 of 2007 is set aside and the matter is remanded back to
the First Appellate Court for taking additional chief examination or receiving
additional documents or for examination of witnesses, if necessary and
dispose of the suit on merits and in accordance with law and by affording
opportunity to all the parties concerned. The said exercise is requested to be
done 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 appeal suit. Unnecessary adjournments shall not be granted
on flimsy ground. Even for adjournment on genuine grounds, the reasons
must be recorded by the Courts.
09.03.2021
ssb
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
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C.M.A.No.2427 of 2010
S.M.SUBRAMANIAM, J.
ssb
To
1.Additional District Judge, Fast Track Court No.4, Bhavani
2. Principal District Munsif Court, Bhavani.
C.M.A.No.2427 of 2010
09.03.2021
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