Madras High Court
Yasodha vs R.Umarani on 7 January, 2022
CMA.No.1850 of 2021
and CMP.No.9969 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
CMA.No.1850 of 2021
and
CMP.No.9969 of 2021
1.Yasodha
2.Baskaran
3.Samundeeswari
All are legal heirsof Late C.Govindan, who was the
plaintiff in O.S. And sole defenant Apeal suit.
(Causes title accepted vide Court order dated 28.04.2021
made in CMP.No.8081 in CMASr.No.11056 of 2021) ...Appellants
Vs.
1.R.Umarani
B.Ranganathan (died)
2.D.Gnanasundari
3.R.Ravikumar
4.S.Prabavathi ..Respondents
1/6
https://www.mhc.tn.gov.in/judis
CMA.No.1850 of 2021
and CMP.No.9969 of 2021
Prayer: Civil Miscellaneous Appeal filed under Order 43 Rule 1 of the Code
of Civil Procedure, against the judgment and decree dated 06.11.2020
passed in AS.No.34 of 2018 by the IV-Additional District Judge, Ponneri by
confirming the judgment and decree dated 07.02.2018 passed by the Sub-
ordinate Judge, Ponneri in OS.No.93 of 2009.
For Appellant : Mr.R.Sreedhar
For Respondents : Mr.V.Prakash, Senior Counsel for
Mr.V.Manohar for R2 to R4
JUDGMENT
The legal representatives of the sole defendant in OS.No.93 of
2009, a suit for declaration of title and consequential injunction are on
appeal.
2.The order under challenge is an order for remand made by the
Appellate Court in AS.No.34 of 2018. The Trial Court, by its judgment and
decree dated 07.02.2018 dismissed the suit, on the conclusion that the
plaintiffs have not proved their title to the suit property. Aggrieved, the
plaintiffs preferred an appeal in AS.No.34 of 2018.
https://www.mhc.tn.gov.in/judis
CMA.No.1850 of 2021
and CMP.No.9969 of 2021
3.The learned Appellate Judge, has set aside the judgment and
decree and remitted the matter to the Trial Court, mainly on the ground that
the report of the Revenue Inspector along with a plan and Surveyor's
Report, which was produced before the Trial Court on 03.11.2011 has not
been considered by the Trial Court though the Document was part of the
records of the Trial Court. The Appellate court also opined that there
appears to be a conflict between the Advocate Commissioner's Report and
the Surveyor's Report. A remand can be made by the Appellate Court under
Order 41 Rule 23 of CPC., if the suit had been disposed on a preliminary
point. That is not the case on hand. The suit has been disposed of, after
complete trial and the Trial Court had rendered its findings on all the issues
that were raised before it. Therefore, unless the case falls within Order 41
Rule 23-A, the remand cannot be justified. The reason for remand namely,
non-consideration of a particular document, which was available to the
Court cannot be a ground for remand under Order 41 Rule 23-A of CPC.
https://www.mhc.tn.gov.in/judis
CMA.No.1850 of 2021
and CMP.No.9969 of 2021
4.The Appellate Court, as a final Court of fact has got every power
and authority to consider a document that has not been considered and
decide the issues on its own without resorting to remand. The order of
remand, which does not satisfy the requirement of Order 41 Rule 23 or 23-A
of CPC., cannot be sustained by this Court. Non-consideration of a piece of
evidence by the Trial Court cannot be a ground for remand, unless the
Appellate Court comes to the conclusion that such non-consideration has
vitiated the entire judgment of the Trial Court. Such is not a case on hand,
the Appellate Judge has pointed out certain discrepancies between report of
Commissioner, who was also assisted by the Surveyor and a report filed by
the Revenue Inspector along with a plan and report of the Surveyor. Those
discrepancies by themselves would not invalidate the findings of the Trial
Court, so as to enable the Appellate Court to set aside the judgment of the
trial court without examining the correctness of the same.
5.I am therefore, of the view that the order of remand cannot be
sustained and the same is set aside. The Appellate Court is directed to take
into consideration the report of the Revenue Inspector, which has been
https://www.mhc.tn.gov.in/judis
CMA.No.1850 of 2021
and CMP.No.9969 of 2021
referred to by it and decide the matter on merits. It will be open to the
Appellate Court to take evidence on the document also. The Appellate Court
will ensure that the directions it has issued in Paragarph 16 of the order in
the appeal will be followed by it. This civil miscellaneous appeal is
therefore, allowed, the order of remand is set aside. No costs.
Consequently, connected miscellaneous petition is closed. The Appellate
Court is directed to dispose of the appeal within a period of six months from
the date of receipt of a copy of this order.
07.01.2022
kkn
Index:No
Internet:Yes
Speaking
https://www.mhc.tn.gov.in/judis
CMA.No.1850 of 2021
and CMP.No.9969 of 2021
R.SUBRAMANIAN, J.
KKN
To:-
1.The IV-Additional District Court,
Ponneri.
2.The Sub-Court,
Ponneri.
CMA.No.1850 of 2021
and
CMP.No.9969 of 2021
07.01.2022
https://www.mhc.tn.gov.in/judis
