IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 236 of 2008()
1. NARAYANAN NAIR, AGED 50, S/O.RAMAN NAIR,
... Petitioner
Vs
1. PREETHI, AGED 38, W/O.NATHAN,
... Respondent
2. NEETHU, AGED 12, D/O.NATHAN, KIZHAKKE
3. NEENU, AGED 12, D/O.NATHAN, KIZHAKKE
For Petitioner :SRI.V.RAJENDRAN (PERUMBAVOOR)
For Respondent :SRI.G.RAJAGOPAL
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/03/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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F.A.O. NO.236 OF 2008
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Dated this the 24th day of March,2009
JUDGMENT
Plaintiff in O.S.170/2002 on the file of
Munsiff Court, Perumbavoor who is the
respondent in A.S.114/2007, is the appellant.
Second defendant and defendants 3 and 4 the
other legal heirs of deceased first defendant
who are the appellants in A.S.114/2007 on the
file of Sub court, Perumbavoor are the
respondents. Appellant instituted O.S.170/2002
claiming damages for defamation originally
from the first defendant and his first wife the
first respondent. On the death of the first
defendant, respondents 2 and 3 were also
impleaded as additional defendants. Learned
Munsiff granted a decree in favour of the
appellant to realise Rs.50,000/- as damages.
It was challenged before Sub Court, Perumbavoor
F.A.O.236/2008 2
in A.S.114/2007. Learned Sub Judge after hearing
the appeal, as per judgment dated 16.2.2008
remanded the suit to the trial court for fresh
disposal after granting opportunity to the
respondents to adduce defence evidence. The order
of remand is challenged in this appeal.
2. The appeal was admitted on the following
substantial question of law.
Whether the order of
remand by the first
appellate court is legal
when the appellants in the
first appeal have no case
that they were not granted
opportunity to adduce
evidence or were prevented
from adducing evidence.”
3. Learned counsel appearing for the
appellant and respondents were heard.
4. The suit was for damages contending that
F.A.O.236/2008 3
the defendants by filing a complaint before
Kunnathunad Police registered as Crime No.144/2001
under section 324 of IPC caused damages to the
reputation of the appellant by committing
defamation and therefore he is entitled to get
damages. The suit was resisted by respondents
contending that Police has registered the case and
there was justification for lodging the complaint
and the reputation of the appellant was not
affected by the complaint and it is justified by
truth and therefore the suit is not maintainable.
5. Before the trial court appellant and three
witnesses were examined on his side and on the side
of the respondent first respondent the second
defendant was examined and Exts.A1 to A6 were
marked. It is on that evidence, learned Munsiff
granted a decree. The learned Sub Judge did not
analyse the evidence or found that appreciation of
evidence by the trial court was not proper. On the
other hand after narrating the arguments raised by
F.A.O.236/2008 4
the appellants and respondents in the first appeal,
the learned Sub Judge remanded the suit as
follows:-
“The burden is on the
defendant to prove that
they are justified in
filing the complaint. The
defendant did not adduce
evidence to prove this
aspect. Therefore, the
counsel wants an
opportunity for adducing
fresh evidence. It can be
seen that the first
defendant is no more. The
2nd defendant is a widow
with two minor children.
Considering this aspect it
is necessary that the
defendant should be given
F.A.O.236/2008 5
an opportunity to adduce
evidence regarding their
defence. Therefore, the
judgment and decree of the
lower court is set aside.”
Learned counsel appearing for the appellant made
available copy of the appeal memorandum. It is
seen from the appeal memorandum that there was no
case for the respondents in the appeal that they
were not granted sufficient opportunity to adduce
evidence. There is also no case that any of the
witnesses who were sought to be examined could not
be examined for any reason. There was no prayer
for a remand of the suit for adducing further
evidence. Learned Sub Judge also did not find that
the appellants in the first appeal were prevented
from adducing necessary evidence either by an act
of the trial court or for any other reason. In
such circumstance, learned Sub Judge was not
justified in setting aside the decree and judgment
F.A.O.236/2008 6
of the trial court and remanding the suit for
granting an opportunity to the defendants to adduce
evidence without considering the evidence on
record. It is more so when even the defendants
themselves have no case that they did not get
opportunity to adduce evidence.
In such circumstance, appeal is allowed. The
judgment in A.S.114/2007 is set aside.
A.S.114/2007 is remanded to Sub Court, Perumbavoor
for fresh disposal in accordance with law. Learned
Sub Judge to hear the appeal and dispose the
appeal on merits. Parties are directed to appear
before the Sub Court, Perumbavoor on 26.5.2009.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006