Madras High Court
Kavitha vs Nambirajan ... 1St on 29 March, 2023
C.M.A.(MD).No.1481 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.1481 of 2013
and
M.P.(MD) No.1 of 2013
1. Kavitha
2. Ramaraj Udayar ..... Appellants/ Respondents 1 and 2
/ Defendants 1 and 2
-vs-
1. Nambirajan ... 1st Respondent/Appellant/ Plaintiff
2. Rengaraj .... 2nd Respondent/ 3rd Respondent/
3rd Defendant
( The 2nd respondent is given up, since
he is ex-parte in the Courts-below)
PRAYER: Civil Miscellaneous Appeal filed under Order 41 Rule 1 of C.P.C,
to set aside the judgment and decree dated 28.03.2013 passed in A.S.No.77 of
2012 on the file of the learned Subordinate Judge, Pudukkottai, setting aside
the judgment and decree, dated 30.10.2010 passed in O.S.No.234 of 2007, on
the file of the learned District Munsif, Pudukkottai, remanding the suit to trial
Court.
For Appellants : Mr.K.Balasundaran
Senior Counsel
1/6
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C.M.A.(MD).No.1481 of 2013
For Respondents : Mr. N.Tamil Mani
for R-1
: R2 – given up vide EB
JUDGMENT
The present Civil Miscellaneous Appeal has been filed by the
defendants 1 and 2 in a suit for declaration of title and permanent injunction
challenging the order of remand passed by the first appellate Court.
2. The plaintiff had filed O.S.No.234 of 2007 for the relief of
declaration of title and permanent injunction with regard to two items of
property. The Trial Court, after considering the oral and documentary
evidence, had dismissed the suit on the ground that the plaintiff has not
established his case.
3. The plaintiff had filed A.S.No.77 of 2012 before the Sub Court,
Pudukkottai District, challenging the said judgment and decree. The first
appellate Court, without setting aside anyone of the findings of the trial
Court, had simply passed an order of remand with a finding that both the
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C.M.A.(MD).No.1481 of 2013
parties have not made any attempt to establish their case properly before the
trial Court.
4. It is the settled position of law that whenever the first appellate Court
passes an order of remand, all the findings of the trial Court should be set
aside and thereafter, the first appellate Court should arrive at a finding that
the oral and documentary evidence that is available before the first appellate
Court is not sufficient to arrive at any conclusion. However, such a
conclusion has not been arrived at by the first appellate Court. Without setting
aside anyone of the findings of the trial Court and without arriving at any
findings relating to the sufficiency of the oral and documentary evidence, the
first appellate Court has simply passed an order of remand. Therefore, order
of remand is not in accordance with under Order 41 Rule 23 C.P.C. The order
of remand is liable to be set aside.
5. The learned counsel appearing on either side submit that in the order
of remand, the trial Court has appointed an Advocate Commissioner and he
has also submitted a report.
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C.M.A.(MD).No.1481 of 2013
6. In view of the above said facts, the order of remand is invalid in the
eye of law and any oral and documentary evidence or Commissioner's report
that were undertaken before the trial Court will not have any validity. The
matter is remitted back to the first appellate Court to consider the matter
afresh on merits and in accordance with law, based on the oral and
documentary evidence which are already on record.
7. With the above said observations, this Civil Miscellaneous Appeal is
allowed. There shall be no order as to costs. Consequently, connected
Miscellaneous Petition is closed.
29.03.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
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C.M.A.(MD).No.1481 of 2013
To
1. The Subordinate Court,
Pudukkottai.
2.The District Munsif Court,
Pudukkottai
3. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD).No.1481 of 2013
R.VIJAYAKUMAR,J.
ebsi
C.M.A.(MD)No.1481 of 2013
29.03.2023
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