Madras High Court
Venkateshwaran vs Ponnaiyan on 9 March, 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
C.M.A(MD)No.989 of 2021
and
C.M.P(MD)No.9284 of 2021
Venkateshwaran,
Son of Narayanasamy,
represented through his power of Agent
Krishnamurthi. :Appellant/Respondent/Plaintiff
.vs.
1.Ponnaiyan
2.Ayyapattu @ Seenivasan
:Respondents/Appellants/Defendants
PRAYER: Civil Miscellaneous Appeal filed under Order 43 Rule 1(U)
of the Civil Procedure Code against the judgment and decree passed
in A.S.No.48 of 2018, dated 24.08.2021, on the file of the
Additional District and Sessions Court, Srivilliputhur insofar as the
remanding the suit in O.S.No.269 of 2010 on the file of Sub-Court,
Srivilliputhur for fresh disposal by setting aside the judgment and
decree of the suit dated 5.7.2018.
For Appellant :Mr.H.Arumugam
For Respondents :Mr.VR.Shanmuganathan
1 and 2
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JUDGMENT
*********
The plaintiff in the suit in O.S.No.269 of 2010 is the appellant
herein.
2.For the sake of convenience, the parties are referred to as
per their ranking before the Court below.
3.The Plaintiff has filed a suit for declaration of title and based
upon the batta and the FMB Sketch indicates thereto in the sketch,
a larger extent of land is mentioned, but in the patta, only a lesser
extent is mentioned. Citing so, the trial Court has held that in view
of larger extent is mentioned in the sketch, decreed the suit in
favour of the defendants and in A.S.No.48 of 2018, by order dated
24.08.2021, the lower appellate Court has allowed the appeal and
remitted the matter back to the trial Court considering the fact that
I.A.No.1 of 2019 which is filed under Order 41 Rule 27 said to be a
joint patta, claims to be anterior in time.
4.After going through the order passed by the lower appellate
Judge, I find that the order of remand is not unsustainable.The
order of remand in A.S is hereby set aside. The learned counsel for
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the respondents/defendants draw my attention to the fact that the
patta now filed in the appellate stage by invoking Order 41 Rule 27
of C.P.C will determine the issue and hence he may be required to
adduce oral evidence before the lower appellate Court.The
submissions of the defendants have been taken into consideration.
5.Per contra, the plaintiff would submit that the lower
appellate Court has enough powers to consider the additional
evidence before the lower appellate Court, by invoking the
procedure as contemplated under Order 41 Rule 28of the Civil
Procedure Code.
6.Taking into consideration the facts in a narrow campus
involving in this appeal, the Civil Miscellaneous Appeal is allowed
and the judgment and decree made in A.S.No. 48 of 2018, dated
24.08.2021, on the file of the Additional District and Sessions Court,
Srivilliputhur is set aside and the matter is remanded back to the
District Court, stand transferred to the file of the Principal District
and Sessions Judge, Srivilliputhur and the Principal District Judge
shall consider the I.A.No.1 of 2019 filed under Order 41 Rule 27 of
C.P.C for reception of documents, after giving an opportunity of
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hearing to the other side. If any application is filed for reception of
additional evidence on the appellate stage and hence the Principal
District Judge, Srivilliputhur is hereby directed to deal with A.S.NO.
48 of 2008 and I.A.No.1 of 2019 and pass orders on the same, on
merits and in accordance with law within a period of four months
from the date of receipt of a copy of this order. Since the matter is
remitted back to the Court below, I am not expressing any opinion
on the merits of the matter. No costs. Consequently, connected
Civil Miscellaneous Petition is closed.
09.03.2022
Index:Yes/No
Internet:Yes/No
vsn
To
1.The Principal Districtd and Sessions Judge,
Srivilliputhur.
2.The Additional District and Sessions Judge,
Additional District and Sessions Court,
Srivilliputhur.
3.The Sub-Judge,
Sub-Court,
Srivilliputhur.
4.The Record Keeper,
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Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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RMT.TEEKAA RAMAN.,J.
vsn
JUDGMENT MADE IN
C.M.A(MD)No.989 of 2021
and
C.M.P(MD)No.9284 of 2021
09.03.2022
https://www.mhc.tn.gov.in/judis
