Madras High Court
Seyadhunnisa vs B.Bagatsingh Mohammed on 30 March, 2023
C.M.A(MD)No.59 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.03.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.59 of 2020
Seyadhunnisa ... Appellant/Respondent/
Plaintiff
Vs.
B.Bagatsingh Mohammed ... Respondents/Appellant/
Defendant
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 in A.S.No.3 of 2016 on the file of the IV Additional District
Court, Tirunelveli, dated 07.09.2019 in so far as remanding the suit in
O.S.No.123 of 2011 on the file of the Principal Sub-Court, Tirunelveli
for fresh disposal by setting aside the judgment and decree of the suit,
dated 31.10.2014.
For Appellant : Mr.H.Arumugam
For Respondent : Mr.C.K.M.Appaji
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C.M.A(MD)No.59 of 2020
JUDGEMENT
The present appeal has been filed by the plaintiff in a suit for
declaration of title and permanent injunction, challenging an order of
remand passed by the first appellate Court.
2. The plaintiff had filed O.S.No.123 of 2011 on the file of
Principal Sub Court, Tirunelveli for the relief of declaration of title and
permanent injunction with regard to second schedule property. The
defendant had raised various grounds including the issue of lack of
pecuniary jurisdiction of the Sub Court, Tirunelveli. The learned trial
Judge had framed four issues relating to the title and possession of the
property and ultimately, decreed the suit as prayed for after arriving at a
finding that the plaintiff has proved his title and possession over the 2nd
schedule property.
3. Challenging the said judgment and decree, the defendant had
filed A.S.No.3 of 2016 before 4th Additional District Court, Tirunelveli.
The learned District Judge has arrived at a finding that the trial Court has
not framed any issue relating to the lack of pecuniary jurisdiction. The
first appellate Court further found that the trial Court has not considered
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C.M.A(MD)No.59 of 2020
properly with regard to the power of attorney marked as Exhibit A.21,
dated 16.10.1985. The first appellate Court further found that the trial
Court has not properly appreciated Exhibit A.10 sale deed and the
validity and genuineness of Exhibit A.12. After arriving at this finding,
the first appellate Court has proceeded to remit the matter back to the
trial Court directing the trial Court to frame issues and arrive at a finding
with regard to Exhibit A.10, A.12 and A.21. Challenging the said order
of remand, the present appeal has been filed by the plaintiff.
4. According to the learned counsel appearing for the
appellant/plaintiff, the oral and documentary evidence are already on
record and the first appellate Court is empowered to re-appreciate the
said oral and documentary evidence and has got all the powers of the
trial Court as contemplated under Section 107 of Code of Civil
Procedure. Therefore, it is not necessary to remit the matter to get certain
findings of the trial Court. The learned counsel for the appellant had
further contended that when the trial Court has discussed in detail all the
issues relating to those documents, there is no necessity at all for
remanding the matter back to the trial Court. He further pointed out that
though it was pleaded by the defendant in his written statement relating
to lack of pecuniary jurisdiction, no contra document was placed by him.
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C.M.A(MD)No.59 of 2020
The grounds raised by the defendant in the first appeal were based upon
certain sale deeds in his favour which were not marked before the Court.
Therefore, there was no necessity whatsoever to remit the matter back to
the trial Court.
5. Per contra, the learned counsel appearing for the respondent had
contended that whenever defense is raised in the written statement
relating to lack of pecuniary jurisdiction and the valuation of the suit, the
trial Court ought to have framed an independent issue relating to the
same and thereafter, arrived at a finding. However, the trial Court has not
framed such an issue. He further contended that the validity of these
documents, namely Exhibits A.10, A.11, A.12 and A.21 have to be
reassessed by the trial Court after letting in oral and documentary
evidence. Only thereafter, a correct conclusion could be arrived at by the
Courts. Hence, he prayed for sustaining the order passed by the first
appellate Court.
6. I have carefully considered the submissions made on either side.
7. A perusal of the order of remand clearly indicates that the
learned first appellate Judge has raised doubts with regard to the validity
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C.M.A(MD)No.59 of 2020
of the documents filed by the plaintiff, namely Exhibit A.10, A.11, A.12
and A.21. The genuineness and validity of these documents, if they are
disputed by the defendant, it is for the first appellate Court to
re-appreciate the existing oral and documentary evidence already on
record to arrive at a finding with regard to the validity and genuineness
of these documents. For the said purpose, it cannot be remanded to the
trial Court.
8. As far as the ground of lack of pecuniary jurisdiction is
concerned, though the defendant had raised such a plea in his written
statement, no contra document was placed by the defendant before the
trial Court to establish with regard to the value of the property and the
lack of pecuniary jurisdiction. In fact, the trial Court has also considered
the said plea in Paragraph No.21 of its judgment and it has arrived at a
finding that the trial Court has got pecuniary jurisdiction. In case, if the
first appellate Court feels that the said finding is wrong, it is for the first
appellate Court to reverse the said finding and arrive at different finding.
Therefore, the first appellate Court has erroneously remitted the matter
back to the trial Court.
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C.M.A(MD)No.59 of 2020
9. The order of remand is an extraordinary power available to the
first appellate Court has to be used sparingly only in cases where the first
appellate Court arrives at a finding that the available oral and
documentary evidence are not sufficient to arrive at a finding. The order
of remand can also be made in cases where the suit has been decided on a
preliminary issue. In all other cases, where the suits have been decided
on merits, the first appellate Court should make efforts only to dispose of
the appeal on merits and should not attempt to remand the matter back to
the trial Court. When Section 107 of the Code of Civil Procedure
empowers the appellate Court to take additional evidence also and it has
got the same powers as that of the trial Court, the said powers have to be
exercised by the first appellate Court instead of remitting the matter back
to the trial Court. A perusal of the judgment would clearly indicate that
the suit has not been disposed of on any preliminary issue. Therefore, the
first appellate Court was not right in invoking Order 41 Rule 23 of Code
of Civil Procedure to remit the matter back to the trial Court.
10. In view of the above said deliberations, the findings of the first
appellate Court is set aside and the matter is remitted back to the first
appellate Court (Additional District Court-IV) for fresh consideration on
merits and in accordance with law. Both the parties are entitled to raise
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C.M.A(MD)No.59 of 2020
all the pleas before the first appellate Court.
11. With the above said observations, this Civil Miscellaneous
Appeal stands allowed. No costs.
30.03.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
To
1.The Additional District Court-IV,
Tirunelveli.
2.The Principal Sub-Court,
Tirunelveli.
3.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
R.VIJAYAKUMAR ,J.
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C.M.A(MD)No.59 of 2020
gbg
Order made in
C.M.A(MD)No.59 of 2020
30.03.2023
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