Madras High Court
Ramasamy vs A.Gurusamy(Died) on 30 June, 2023
C.M.A(MD)No.236 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.06.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.236 of 2018
Ramasamy ... Appellant/Respondent/
Plaintiff
Vs.
A.Gurusamy(Died) ... Respondent/Appellant/
Defendant
2.Raamuthai
3.Muthukrishnan
4.Alagarsamy
5.Subramanian
6.Venkatesan
7.Selva Kumar ... Proposed Respondents
(R2-R7 are brought on record as legal heirs of the
deceased sole respondent vide court order, dated
02.03.2023 in C.M.P(MD)No.2689 & 2690 of 2023)
PRAYER: Civil Miscellaneous Appeal is filed under Order 43 Rule 1(u)
of Code of Civil Procedure, to set aside the judgment and decree passed
by the Sub Court, Virudhunagar in A.S.No.21 of 2016, dated 01.09.2017.
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C.M.A(MD)No.236 of 2018
For Appellant : Mr.Lakshmi Gopinathan
For R2,R3,R5&R7 : Mr.T.S.Mohammed Mohideen
For R4&R6 : No Appearance
JUDGMENT
The present appeal has been filed by the plaintiff in a suit for
declaration, recovery of possession and mandatory injunction
challenging the order of remand passed by the first appellate Court.
2. The appellant herein as plaintiff had filed O.S.No.146 of 2010
on the file of District Munsif Court, Virudhunagar for the relief of
declaration of title, recovery of possession, mandatory injunction and for
other reliefs. According to the plaintiff, he is the owner of the portion
marked as ABCD in the rough sketch filed along with the plaint.
3. The defendant had filed a written statement disputing the title
and the right of the defendant to seek recovery of possession. The
defendant has also disputed the right of the plaintiff to seek the decree
for a mandatory injunction. The defendant has also contended that the
schedule of property does not contain the boundaries so as to identify the
property to declare the title or seek recovery of possession. A
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C.M.A(MD)No.236 of 2018
Commissioner was appointed by the trial Court in I.A.No.420 of 2013
and based upon the said report, the trial Court proceeded to hold that the
plaintiff has established his title over the ABCD portion and has also
granted a decree for recovery of possession and mandatory injunction.
4. This decree was challenged by the defendant by filing A.S.No.
21 of 2016 before Sub Court, Virudhunagar. The learned Subordinate
Judge had arrived at a finding that the plaintiff has not incorporated the
boundaries in the schedule of property so as to identify the property and
grant a decree for declaration of title and recovery of possession. The
first appellate Court further found that the trial Court has not framed any
specific issue with regard to the prayer for recovery of possession. On
these two grounds, the first appellate Court has set aside the judgment
and decree of the trial Court and it has remitted the matter back to the
trial Court. The first appellate Court has also made observations to the
effect that the plaintiff after remand, would be entitled to amend the
schedule of property and consequently, the defendant would be entitled
to file an additional written statement. The trial Court was directed to
frame an additional issue relating to recovery of possession. Challenging
the said order of remand, the present appeal has been filed by the
plaintiff.
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C.M.A(MD)No.236 of 2018
5. According to the learned counsel appearing for the appellant,
the plaintiff wants to succeed in his suit without making any amendment
in the schedule of property. He would like to stick on to the existing
pleadings and the schedule of property. Further, the parties have
understood the dispute and they have let in evidence with regard to the
right of the plaintiff to seek recovery of possession. Therefore, non
framing of a specific issue with regard to recovery of possession would
not be in fatal and for the said purpose, an order of remand should not
have been passed.
6. Per contra, the learned counsel for the respondents had
contended that the first appellate Court has recorded various findings in
favour of the defendant. Despite those favourable findings, the first
appellate Court has not chosen to dismiss the first appeal, but has rather
remanded the matter back to the trial Court. The first appellate Court
ought to have allowed the first appeal and dismissed the suit. Instead, it
has chosen to grant a second chance to the plaintiff to prove his case. If
the plaintiff has not chosen to let in any oral or documentary evidence to
establish his title or his right to seek recovery of possession before the
trial Court, he cannot be granted a second chance.
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C.M.A(MD)No.236 of 2018
7. I have carefully considered the submissions made on either side
and perused the judgment of the first appellate Court directing an order
of remand.
8. It could be seen from the judgment of the first appellate Court
that it has arrived at a finding that non-inclusion of the boundary recitals
in the schedule of property is fatal and therefore, in order to afford an
opportunity to the plaintiff, it has passed an order of remand. However,
the learned counsel appearing for the appellant/plaintiff submits that
there is no dispute whatsoever with regard to the identity of the property
and the plaintiff does not like to carry out any amendment in the body of
the plaint or in the schedule of property. It is settled position of law that
mere non framing of an issue on a particular aspect would not be fatal
when both the parties have understood the issues and they have let in
evidence. In the present case, the parties have let in oral and
documentary evidence with regard to the right of the plaintiff to seek for
recovery of possession. Therefore, the first appellate court was not right
in remitting the matter for the purpose of framing a specific issue with
regard to recovery of possession.
9. In view of the above said deliberations, the order of remand
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passed by the first appellate Court is hereby set aside and the matter is
C.M.A(MD)No.236 of 2018
remitted back to the file of the first appellate Court to decide the appeal
on merits and in accordance with law on the basis of the oral and
documentary evidence which are already on record. The appeal shall be
disposed of on or before 31.12.2023.
10. With the above said observations, this Civil Miscellaneous
Appeal stands allowed. No costs.
30.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
To
1.The Sub Court,
Virudhunagar.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.236 of 2018
R.VIJAYAKUMAR,J.
gbg
Judgment made in
C.M.A(MD)No.236 of 2018
30.06.2023
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