Senthil Vinayagam vs Aiyammal
2023 Latest Caselaw 3487 Mad

                                                                           C.M.A.(MD)No.579 of 2022


                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED : 30.03.2023

                                                    CORAM:

                            THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                          C.M.A.(MD)No.579 of 2022
                                                    and
                                          C.M.P.(MD)No.4979 of 2022

                     Senthil Vinayagam                           ...Appellant/Plaintiff


                                                                              Vs.

                     Aiyammal                                    ...Respondent/Defendant


                     PRAYER: This Civil Miscellaneous Appeal is filed under Order XLIII
                     Rule I(U) of Civil Procedure Code, to set aside the judgment and decree
                     dated 29.03.2019 passed in A.S.202 of 2017 on the file of the learned
                     Sub-Court, Tiruchendur by setting aside the decree and judgment dated
                     21.01.2014 made in O.S.No.185 of 2010 on the file of het learned
                     District Munsif Court, Tiruchendur.


                                       For Appellant       : Mr.S.R.Anbarasu
                                                            for Mr.T.R.Janarthanan
                                       For Respondent      : Mr.M.P.Senthil




                     1/8

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                                                                               C.M.A.(MD)No.579 of 2022




                                                      JUDGMENT

This Civil Miscellaneous Appeal had been directed against the

order passed by the Appellate Court in remanding the entire matter to the

trial Court for fresh consideration mainly on the ground that the

respondent had filed an application for reception of additional documents

under Order 41 Rule 27 of the Civil Procedure Code (hereinafter referred

to as 'CPC' for the sake of brevity).

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

as per their rank before the Trial Court.

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

Miscellaneous Appeal, are as follows:-

(i)the suit has been originally filed by the plaintiff seeking

declaration and recovery or possession on the basis of the gift deed said

to have been executed by the grandfather of the plaintiff under Ex.A1.

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.579 of 2022

The defendant had totally denied the execution of the document by the

grandfather of the plaintiff.

(ii)The trial Court originally decreed the suit in favour of the

plaintiff. Thereafter, an application was taken out for reception of

additional documents before the appellate Court with the contention that

the defendant had infact executed necessary documents in favour of the

plaintiff and hence, those documents are necessary to decide the matter.

The First Appellate Court having allowed the application for reception of

certain documents set aside the decree and judgment of the trial Court

and remanded the matter for fresh consideration and for additional

pleadings with regard to the additional documents before the trial Court

by the parties. Challenging the said remand order, this appeal came to be

filed.

4. I have heard the learned counsel appearing on either side and

also perused the materials available on record.

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.579 of 2022

5.In view of the above facts, now the point arises for

consideration in this appeal is:

(1) Whether the Appellate Court is right in setting aside the

judgment of the trial Court and remanding the matter merely on the

ground that additional documents have been filed?

6.Without going into the merits of the case, this Court is of the

view that the very order of remanding of suit by setting aside the decree

and judgment of the trial Court for fresh consideration in its entirety by

the appellate Court is not valid in the eye of law. The Appellate Court

can remand the matter only on certain circumstances as provided under

Order 41 Rule 23 to Rule 25 of CPC.

7.When the trial Court decided the suit on a preliminary issued,

which had been appealed and the appellate Court set aside the said

judgment, in that situation, the appellate Court can very well remand the

matter under Order 41 Rule 23 of CPC.

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.579 of 2022

8.Order 41 Rule 23-A of CPC reads that only when the

appellate Court is of the considered view that re-trial is absolutely

necessary and the decree and judgment of the trial Court is set aside, the

remand is possible. Order 41 Rule 24 of CPC deals with disposal of the

appeal by the appellate Court itself, when there are sufficient evidence on

record. Order 41 Rule 25 of CPC deals with non framing of necessary

issues and in such case,the appellate Court may remand the suit and refer

the same for re-trial to the Court, whose decree is appealed with a

direction to take additional evidence if necessary.

9.Only in the above circumstances, the matter can be remanded

to the trial Court. Whereas, in the present case, the appellate Court had

simply remanded the entire matter, merely on the ground that the

appellate Court had allowed the application filed under Order 41 Rule 27

of CPC for reception of additional documents. It is also relevant to note

that even prior to admitting the documents filed under Order 41 Rule 27

CPC., the appellate Court had gone into the merits of those documents

and recorded findings. The same is also not in accordance with law.

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.579 of 2022

Besides, the appellate Court set aside the entire decree and judgment and

remanded the suit to the trial Court for adducing additional evidence,

which is also against the very fundamental principle of law.

10.Once an application filed under Order 41 Rule 27 CPC is

allowed by the Appellate Court, the appellate Court may take such

evidence, or direct the Court, from whose decree the appeal is preferred,

to take such evidence and send the evidence to the appellate Court.

However, the appellate Court without embarking such exercise had

simply remanded the matter to the trial Court and set aside the entire

judgment, which is per se not valid in the eye of law. Such view of the

matter, the judgment passed by the appellate Court in remanding the

matter to the trial Court for re-trial is interfered and the same is set aside.

The appellate Court is directed to record additional evidence, which had

been received under Order 41 Rule 27 CPC and give proper opportunity

to both sides to adduce any oral evidence or rebuttal evidence and then

decide the appeal on its own merits.

https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.579 of 2022

11.With the above direction, this Civil Miscellaneous Appeal is

allowed. No costs. Consequently, connected miscellaneous petition is

closed.

30.03.2023 NCC : Yes/Nos Index : Yes/No Internet : Yes/No ta

To

1.The Sub-Court, Tiruchendur.

2.The District Munsif Court, Tiruchendur.

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.579 of 2022

N.SATHISH KUMAR, J.

ta

C.M.A.(MD)No.579 of 2022

30.03.2023

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