Madras High Court
Sorimuthu vs Natarajan @ Anthony on 21 April, 2023
2023/MHC/2067
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A(MD)No.468 of 2022
and
C.M.P(MD)No.4128 of 2022
Sorimuthu :Appellant/Respondent/Plaintiff
.vs.
Natarajan @ Anthony :Respondent/Appellant/Defendant
PRAYER: Civil Miscellaneous Appeal filed under Order XLIII Rule
1(u) of the Civil Procedure Code against the judgement and decree
made in A.S.No.53 of 2015, dated 15.12.2021 on the file of
Subordinate Judge, Sankarankoil remanding back the case to the
trial Court by modifying the judgment and decree made in O.S.No.
07 of 2009, dated 8.6.2015, on the file of the District Munsif-cum-
Judicial Magistrate , Sivagiri.
For Appellant :Mr.M.U.Shameem John
For Respondent :Mr.S.Meenakshisundaram
Senior Counsel
for Mr.R.T.Arivukumar
JUDGMENT
*************
Challenge has been made to the order of remand passed by
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the First Appellate Court.
2.The plaintiff has filed a suit for permanent injunction
claiming to be the cultivating tenant of the land owned by the
Thiruvaduthurai Adheenam and a defense is also taken to the effect
that he is a cultivating tenant. However, the trial Court has decreed
the suit in favour of the plaintiff. Challenging the same, an appeal
has been filed before the First Appellate Court and during the
pendency of the appeal, applications have been filed for the
reception of additional documents by the appellant as well as the
respondent and a contention is raised to the effect that the
document Ex.A1to Ex.A3 relied upon by the plaintiff is not valid and
obtained fraudulently.The First Appellate Court allowed the
Petitions filed for reception of additional documents by both sides,
however, in order to give an opportunity to the parties to let in
evidence, the First Appellate Court has set aside the judgment of
the trial Court and remanded the matter to the trial Court for fresh
disposal, after giving opportunity to the parties. Challenging the
remand order, the present appeal has been filed.
3.Heard the learned counsel appearing on either side and
perused the materials placed before this Court.
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4.Now the point that arose for consideration in this appeal is
as follows:
1.Whether the First Appellate Court is right in setting aside
the judgment of the trial Court merely on the basis of allowing the
Petitions for reception of additional evidence?
2.To what relief the parties are entitled to?
5.At the outset, this Court is of the view that the method
adopted by the First Appellate Court in setting aside the judgment
of the trial Court merely on the basis of reception of additional
documents on the appellate stage, is not according to law.
6.Once the First Appellate Court decided to allow the I.A
filed under Order 41 Rule 27 of Civil Procedure Code to receive the
additional documents, then the First Appellate Court would have
taken evidence itself or directed the trial Court or the subordinate
Court to take evidence in respect of the additional documents filed
before the Court and decide the appeal on merits based on the
evidence adduced by the parties. Whereas the First Appellate Court
has simply remaned the matter back to the trial Court. Remand is
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permissible under Order 41 Rule 23 of Civil Procedure Code where
the suit has been disposed of in the preliminary point and in
appeal, judgment has been reserved, then the First Appellate Court
can remand the matter back to the trial Court for fresh
consideration. Under Order 41 Rule 23 of Civil Procedure Code,
when the First Appellate Court is of the view that retrial is
absolutely necessary in certain cases can remand the matter and
Order 41 Rule 25 of Civil Procedure Code has also gives
circumstances when the remand can be made. Only in those
circumstances, remand can be made to the trial Court, wherein, in
this case, it is only application filed for receipt of additional
documents, but the First Appellate Court has set aside the entire
judgment of the trial without following the procedure as
contemplated under Order 41 Rule 28 of Civil Procedure Code.
7.Under Order 41 Rule 25 remand is possible only when the
trial Court has omitted to frame necessary issues and in such
situation the First Appllate Court may frame issue and refer the
matter to the trial Court, with a direction to the trial Court to take
further evidence also and only in those cases, remand is possible
and remand is not automatic in all cases where additional evidence
is received.
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8.In such view of the matter, the remand order passed by the
First Appellate Court in setting aside the judgment of the trial
Court is set aside and the First Appllate Court is directed to give
opportunity to both the parties to adduce additional evidence in
respect of the additional documents filed before the First
Appellate Court and decide the appeal on its own merits. Such
exercise shall be completed within a period of four months from the
date of receipt of a copy of this order.
9.With the above directions, the Civil Miscellaneous Appeal is
allowed. Consequently, connected Miscellaneous Petition is closed.
21.04.2023
Index:Yes/No
Internet:Yes/No
NCC:Yes/No
vsn
To
1.The Subordinate Judge,
Sankarankoil.
2.The District Munsif-cum-Judicial Magistate,
Sivagiri.
3.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
N.SATHISH KUMAR.,J.
vsn
JUDGMENT MADE IN
C.M.A(MD)No.468 of 2022
and
C.M.P(MD)No.4128 of 2022
21.04.2023
https://www.mhc.tn.gov.in/judis
