Kumarasamy vs Mallika
2023 Latest Caselaw 6151 Mad

                                                                               C.M.A. (MD)No.768 of 2021


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED : 14.06.2023

                                                     CORAM:

                                  THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                            C.M.A.(MD)No.768 of 2021
                                                      and
                                            C.M.P.(MD) No.7622 of 2021

                1.Kumarasamy
                2.Subramaniyan
                3.Thyagarajan (Died)
                4. Arumuga Thevar                                      ... Appellants
                5.Neethivel Raja
                6.Sharmila
                7.Sathya
                8.Vasantharaja

                (Appellants 5 to 8 are brought on record as LRs
                of the deceased 3rd appellant vide Court order dated
                28.04.2023 made in C.M.P.(MD)Nos.4735 and 4738
                of 2023 in C.M.A.(MD)No.768 of 2021)


                                                       Vs.
                1.Mallika
                2.Vigneswaran
                3.Ramachandran                                         ... Respondents

                PRAYER: This Civil Miscellaneous Appeal is filed under Order 43 Rule 1(4) of
                C.P.C., against the judgment and decree of Sub-Court, Aranthangi, dated
                08.102.2020 rendered in A.S.No.31 of 2019 remitting back O.S.No.101 of 2008 to
                the file of District Munsif Court, Aranthangi.

                1/8
https://www.mhc.tn.gov.in/judis
                                                                                         C.M.A. (MD)No.768 of 2021


                                           For Appellants           : Mr.N.Balakrishnan
                                           For Respondents          : Mr.K.Baala Sundharam,
                                                                      Senior Counsel for
                                                                      Mr.R.Paranjothi




                                                            JUDGMENT

This Civil Miscellaneous Appeal has been filed challenging the

judgment and decree dated 08.102.2020 made in A.S.No.31 of 2019, passed by the

learned Subordinate Judge, Aranthangi, remitting back O.S.No.101 of 2008 to the

file of District Munsif Court, Aranthangi.

2. For the sake of convenience, the parties are referred to herein, as per

their own ranking before the trial Court in O.S.No.101 of 2008.

3. The brief facts, leading to the filing of this Civil Miscellaneous

Appeal, are as follows:-

The plaintiffs have filed a suit in O.S.No.101 of 2008 on the file the District

Munsif Court, Aranthangi for declaration and permanent injunction. The plaintiffs

have traced the title through one Subbiah Thevar, Sundara Thevar and Chidambara

Thever, which was disputed by the defendants.

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.768 of 2021

4. The trial Court has framed the following issues:

1. Whether the plaintiffs are entitled to declaration and injunction as prayed for?

2. To what other relief?

5. Before the trial Court, on the side of the plaintiffs, one witness was

examined as P.W.1 and 14 documents were marked as Ex.A1 to Ex.A14. On the

side of the defendants, two witnesses were examined as D.W.1 and D.W.2 and 15

documents were marked as Ex.D1 to Ex.D15.

6. Considering the entire evidence and materials on record, the trial Court

dismissed the suit holding that the plaintiffs have not established the title.

Challenging the same, appeal was filed by plaintiffs before the Sub Court,

Aranthangi. During the pendency of the appeal, an application under Order 41

Rule 27 of C.P.C. has been filed by the plaintiffs. The first appellate Court, taking

note of the above application, had set aside the entire decree and judgment of the

trial Court and remanded the matter back to the trial Court. Challenging the same,

the present Civil Miscellaneous Appeal has been filed by the defendants.

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.768 of 2021

7. It is the contention of the learned counsel appearing for the defendants /

appellants that the first appellate Court, without following the proper procedure,

had simply set aside the detailed judgment of the trial Court after allowing the

application filed under Order 41 Rule 27 of C.P.C., which is not proper. Hence,

the same has to be set aside.

8. Heard the learned Senior Counsel appearing for the plaintiffs /

respondents and perused the materials available on record.

9. In the light of the above submissions, now the point arise for

consideration in this Civil Miscellaneous Appeal are as follows:

1. Whether the appellate Court is right in setting aside the

judgment of the trial Court and remanding the matter without

following any procedure as contemplated under C.P.C.?

2. Whether the appellate Court is right in remanding the

matter without re-framing the issue itself, when an evidence was

already available in respect of the particular issue?

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.768 of 2021

10. On a perusal of the entire judgment of the trial Court and first appellate

Court, this Court is of the view that the first appellate Court evaded its

responsibility in deciding the matter as per the procedure established under the

law. Suit has been laid for declaration and permanent injunction. The plaintiffs

have traced the title through one Subbiah Thevar, Sundara Thevar and Chidambara

Thever. Though two issues were framed before the trial Court, the parties

understood the pleadings and adduced sufficient evidence with regard to the

relationship and the genealogy aspect and the trial Court dismissed the suit on the

ground that the plaintiffs have not established the case. However, the first

appellate Court after allowing the application filed under Order 41 Rule 27 of

C.P.C., without embarking any further enquiry either to record the evidence itself

or to direct the trial Court to record the further evidence, simply remanded the

matter to the trial Court and set aside the entire judgment. The appellate Court

while remanding the matter has observed that since the trial Court has not framed

the specific issue with regard to the genealogy, retrial is required.

11. On perusal of the entire judgment of the trial Court it is seen that, in fact

the parties understood their lis and adduced sufficient evidence in all aspects.

Therefore, when the evidence are already on record, it is sufficient to dispose of

the main case on merits, the Appellate Court ought to have resettled the issues if at

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.768 of 2021

all those issues are not answered and would have proceeded further. However, the

same has not been done in this case, which is against the very procedure

contemplated under Order 41 Rule 24 of C.P.C.

12. Such view of the matter, the very approach of the first appellate Court is

liable to be interfered. Accordingly, the remand order passed by the first appellate

Court is set aside. The first appellate Court is directed to record further evidence

itself and resettle the issues, if necessary, based on the evidence already on record

and decide the appeal on its own merits, within a period of three months from the

date of receipt of a copy of this judgment. The parties are directed to appear

before the appellate Court on 10.07.2023.

13. With the above observations, this Civil Miscellaneous Appeal is

allowed. No Costs. Consequently, connected miscellaneous petition is closed.

14.06.2023 NCC : Yes/No Index : Yes/No

vsm

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.768 of 2021

To

1.The Sub-Court, Aranthangi.

2.The District Munsif Court, Aranthangi.

3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.768 of 2021

N.SATHISH KUMAR, J.

vsm

C.M.A.(MD)No.768 of 2021

14.06.2023

https://www.mhc.tn.gov.in/judis