IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.08.2010 C O R A M THE HONOURABLE MRS. JUSTICE B.RAJENDRAN C.M.A. No. 546 of 2007 and M.P. No. 1 of 2007 Sundarajan @ Pichaikaran .. Appellant Versus Aanji .. Respondent Appeal filed under Order 43 Rule 1 (U) of CPC against the judgment and decree passed in A.S. No. 20 of 2002 dated 08.08.2006 on the file of the Sub Court, Arni. For Appellant : Mr. P. Seshadri For Respondents : No appearance JUDGMENT
The appellant is the successful plaintiff in the suit in O.S. No. 307 of 1994 on the file of the Principal District Munsif Court, Arni. This appeal is preferred by the appellant against the judgment and decree dated 08.08.2006 passed in A.S. No. 20 of 2002 filed by the respondent herein, remanding the matter to the trial court for fresh disposal.
2. According to the appellant, the suit in O.S. No. 307 of 1994 was filed by him against the defendants for the following relief:-
“a. Restraining the defendants, their men, agents, servants etc., by means of a permanent injunction from putting up any constructions over the ‘B’ schedule property
b. Directing the defendants to remove the structures put up in the ‘B’ schedule property by means of a mandatory injunction failing which remove the same through court at the costs of the defendants
bb. Declare the title of the plaintiff with regard to the ‘B’ schedule property and direct the defendants to deliver possession of the ‘B’ schedule property after removing the encroachments failing which deliver it through Court
c. Award costs of this suit and pass further suitable orders as this Honourable Court deem it fit and proper under the circumstances.”
3. According to the appellant, the property belonged to his mother Peruma Ammal @ Selvam and she has purchased the same by means of a registered sale deed dated 02.05.1960. The said Peruma Ammal @ Selvam died in the year 1983 and her husband pre-deceased her. On the death of his mother, her sons namely the appellant and one another son Thangarajan were in joint possession of the ‘A’ schedule property. The appellant, being the eldest son, as Manager and Kartha of the joint family, managing the family property and the appellant was in open, continuous and uninterrupted possession and enjoyment of the property. In the ‘A’ schedule property, the appellant left open space on the Eastern and Western side and the Western side is specifically left out with an intention to drain the roof rain water as well as for repairing the wall, roof etc., which is described as ‘B’ schedule in the plaint. The ‘B’ schedule property forms part and parcel of the ‘A’ schedule property. The defendants in the suit are pangalis and their house is situate on the west of the ‘B’ schedule property. On 22.04.1994, the defendants suddenly encroached on the northern side of the ‘B’ schedule property which is morefully shown as E F G H in the plaint plan and put up some structures day and night continuously. The defendants have also intended to encroach upon the remaining ‘B’ schedule property. Under those circumstances, the suit came to be filed for bare injunction restraining the defendants from putting up any construction over ‘B’ schedule property and also for mandatory injunction to remove the structures already put up by them. Pending suit, since the first defendant filed a suit against the plaintiff/appellant and obtained interim order in O.S.No. 402 of 1994 on the file of the Additional District Munsif Arni and on the strength of the injunction order the first defendant/respondent herein also put up some construction in the ‘B’ schedule property during the month of December 1994 inter alia denying the title of the plaintiff/appellant herein, it has become necessary for the plaintiff/appellant to seek for declaration and injunction.
4. The suit was resisted by the first defendant/respondent herein as well as the second defendant in the suit. As stated supra, after filing of the suit by the plaintiff/appellant herein in O.S. No. 307 of 1994, the first defendant has filed O.S. No. 402 of 1994 before the Additional District Munsif, Arni. In that suit, the plaintiff (respondent herein) claimed that the suit property is situate in a gramanatham land and it was jointly enjoyed by his father and therefore he acquired title by adverse possession. In that suit, the plaintiff/appellant herein was described as joint owner. It was also claimed in that suit that the defendants in the suit are obstructing him from putting up construction. Therefore, O.S. No. 402 of 1994 was filed for declaration that the plaintiff (respondent herein) is the owner of the property and the plaintiff/appellant herein should not obstruct him from putting up any further construction. The suit in O.S. No. 402 of 1994 was resisted by the plaintiff/appellant herein.
5. Both the suits were jointly tried together and a common judgment was passed in which the trial court decreed the suit of the plaintiff/appellant herein namely O.S. No. 307 of 1994 as prayed for and granted a decree of declaration in respect of the property, mandatory injunction as well as permanent injunction and consequently, the suit in O.S. No. 402 of 1994 filed by the respondent herein was dismissed. As against the dismissal of the suit in O.S. No. 402 of 1994, the respondent herein did not prefer any appeal and therefore, the findings rendered in O.S. No. 402 of 1994 has become final. However, the respondent herein has filed an appeal before the first appellate court in A.S. No. 20 of 2002 as against the decree and judgment passed in O.S. No. 307 of 1994 filed by the plaintiff/appellant herein. When the first appeal was taken up for consideration, the first appellate Court, taking into consideration the petition filed under Order 41 Rule 27 CPC by the appellant herein in I.A. No. 83 of 2006 for reception of certain documents at the appellate stage, for the purpose of marking those documents and to enable the plaintiff/appellant herein to examine the author of the document, remanded the matter to the trial court for fresh consideration by setting aside the decree and judgment passed by the trial court in O.S. No. 307 of 1994 filed by the plaintiff/appellant herein.
6. According to the appellant, the order of remand is vitiated on two grounds namely the first appellate Court should not have entertained the appeal itself in view of the fact that that there are two suits in respect of the very same property between the very same parties and the suit filed by the appellant in O.S. No. 307 of 1994 was decreed and the suit filed by the respondent herein in O.S. No. 402 of 1994 was dismissed, against which, the respondent herein has not preferred any appeal. The findings rendered in O.S. No. 402 of 1994 filed by the respondent herein has reached a finality and it is binding on him, therefore, he has no right to challenge the judgment and decree passed in O.S. No. 307 of 1994. Therefore, the very appeal itself is not maintainable. Secondly, merely because the appellant has filed an application for reception of certain documents, the first appellate Court ought not to have remanded the matter back to the trial court, instead, the first appellate Court itself can even permit the parties to let in oral and documentary evidence. Therefore also, the order of remand passed by the first appellate Court is vitiated.
7. Even though notice was served on the respondent, the respondent is not represented by any one. There is no representation for the respondent, either in person or through an advocate.
8. The point for consideration in this appeal is
(i) whether the order of remand passed by the first appellate Court is vitiated and
(ii) Whether the first appellate Court can entertain an appeal filed by the respondent herein, who has not chosen to prefer an appeal as against the decree and judgment passed in O.S. No. 402 of 1994 filed by him for the very same relief, which was dismissed by the trial court
9. On careful consideration of the averments made in the plaint, written statement as well as the first appeal grounds, it is very clear that there are two suits. The first suit was filed by the appellant herein in O.S.No. 307 of 1994 for a declaration and consequential injunction against the defendants therein in respect of property mentioned therein. The second suit in O.S.No. 402 of 1994 was filed by the respondent herein in respect of the very same property against the appellant herein for declaration to declare that he is the owner of the property by virtue of his long, continuous and adverse possession and also for a consequential injunction. Both the suits were tried together and ultimately, the suit in O.S. No. 307 of 1994 filed by the appellant was decreed and the suit in O.S. No. 402 of 1994 filed by the respondent herein was dismissed. As against the dismissal of his suit in O.S. No. 402 of 1994, the respondent herein has not filed any appeal and therefore, the findings rendeed in O.S. No. 402 of 1994 became final. However, the respondent herein has chosen to file A.S. No. 20 of 2002 as against the decree and judgment in O.S. No. 307 of 1994 filed by the appellant herein. In that appeal, no doubt, the appellant herein need not have filed any application for reception of documents and he could have merely filed a counter resisting the appeal. But for the reasons best known to the appellant herein, he has filed I.A. No. 83 of 2006 under Order 41 Rule 27 of CPC for reception of certain documents. When such an application was filed, the first appellate Court thought it fit to remand the matter back to the trial court because the document has to be proved in accordance with law. In that process, the first appellate Court failed to consider the very legal question namely whether the appeal itself is maintainable or not especially when the suit in O.S. No. 402 of 1994 filed by the appellant in the first appeal was dismissed by the trial court and it became final, but the appellant in the first appeal has chosen to challenge only the decree and judgment passed in O.S. No. 307 of 1994 filed by the appellant herein.
10. The learned counsel for the appellant relied on the decision reported in (Premier Tyres Limited vs. Kerala State Road Transport Corporation) 1993 Supp (2) SCC 146 delivered by a three Judge Bench of the Honourable Supreme Court and contended that when there are two suits connected and tried together, the findings recorded in one suit having become final in the absence of appeal, the appeal preferred against the findings recorded in the other suit would be barred by resjudicata. It was further contended that in the light of the aforesaid decision, the first appellate Court ought not to have entertained the very appeal itself filed by the respondent herein. In Para No.4, 5 and 6 of the said Judgment, the Honourable Supreme Court held as follows:-
4. Although none of these decisions were concerned with a situation where no appeal was filed against the decision in connected suit but it appears that where an appeal arising out of connected suit is dismissed on merits the other cannot be heard, and has to be dismissed. The question is what happens where no appeal is filed, as in this case from the decree in connected suit. Effect of non-filing of appeal against a judgment or decree is that it becomes final. This finality can be taken away only in accordance with law. Same consequences follow when a judgment or decree in a connected suit is not appealed from.
5. Mention may be made of a Constitution Bench decision in Badri Narayan Singh v. Kamdeo Prasad Singh. In an election petition filed by the respondent a declaration was sought to declare the election of appellant as invalid and to declare the respondent as the elected candidate. The tribunal granted first relief only. Both appellant and respondent filed appeals in the High Court. The appellants appeal was dismissed but that of respondent was allowed. The appellant challenged the order passed in favour of respondent in his appeal. It was dismissed and preliminary objection of the respondent was upheld. The Court observed,
We are therefore of opinion that so long as the order in the appellants Appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal, which is founded on the contention that that finding is incorrect.
6. Thus the finality of finding recorded in the connected suit, due to non-filing of appeal, precluded the court from proceeding with appeal in other suit. In any view of the matter the order of the High Court is not liable to interference.
11. Therefore, the learned counsel for the appellant contend that on this ground namely the appeal filed by the respondent should not have been entertained by the first appellate court inasmuch as the findings rendered in the other suit become has final without filing an appeal, the question of remand does not arise.
12. The learned counsel for the appellant also relied on the decision reported in (Municipal Corporation, Hyderabad vs. Sunder Singh) (2008) 8 scc 485 for the proposition that the order of remand should not be passed by the First Appellate Court as a matter of course. In fact, the Court should be slow in exercising the discretionary powers conferred under Rule 23. Further, before passing an order of remand, the first Appellate Court has to record reasons that re-trial was necessary and also give finding that the decree and judgment passed by the trial Court is liable to be reversed and only then, an order of remand should be passed. In Para Nos. 17, 18, 32, 33 and 34, it was held as follows:-
17. Order 41 Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court.
18. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order 41 Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.
32. A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order 41 Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order 41 Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence.
33. Order 41 Rule 23-A of the Code of Civil Procedure is also not attracted. The High Court had not arrived at a finding that a retrial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order 41 Rule 23 of the Code.
34. An order of remand cannot be passed on ipse dixit of the court. The provisions of Order 2 Rule 2 of the Code of Civil Procedure as also Section 11 thereof could be invoked, provided of course the conditions precedent therefor were satisfied. We may not have to deal with the legal position obtaining in this behalf as the question has recently been dealt with by this Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas.”
13. A reading of the order of remand passed by the first appellate Court would indicate that no finding was recorded as to why the order passed by the trial court has to be reversed In this connection, I am fortified by the decision rendered by the Honourable Supreme Court reported in (P. Purushottam Reddy and another vs. Pratap Steels Ltd) (2002) 2 scc 686 wherein in para-10 and 11, it was stated thus:-
“10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23-A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before the 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23-A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these Rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati4 (AIR at p. 399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand dehors Rules 23 and 23-A. To wit, the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.
11. In the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary. Neither Rule 23 nor Rule 23-A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule 25. So far as the objection as to maintainability of the suit for failure of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix A CPC is concerned, the High Court has itself found that there was no specific plea taken in the written statement. The question of framing an issue did not, therefore, arise. However, the plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to clause (c) of Section 16 of the Specific Relief Act, 1963 is concerned, the pleadings are there as they were and the question of improving upon the pleadings does not arise inasmuch as neither any of the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial court. Nevertheless, the parties and the trial court were very much alive to the issue whether Section 16(c) of the Specific Relief Act was complied with or not and the contentions advanced by the parties in this regard were also adjudicated upon. The High Court was to examine whether such finding of the trial court was sustainable or not in law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material inasmuch as the High Court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration and decision.”
14. It is also relevant to look into the decision of the Division Bench of this Court reported in (V. Munusamy (deceased) and others vs. M. Suguna) 2005 (1) CTC 107 wherein this Honourable Court held as follows:-
“7. Based on the averment in the affidavit filed in support of I.A. No. 7745 of 1987, filed under Section 4 (1) of the Act, the trial court, after satisfying itself, gave a finding that the petitioner therein/appellant herein is entitled to purchase the suit property on such finding satisfies one of the conditions prescribed under Section 4 (1) of the Act. No doubt, the trial court has not arrived the value of the shae purchased by the transferee i.e., plaintiff. However, as rightly pointed out by the learned senior counsel for the appellant, on this ground, the lower appellate court set aside the order of the trial Court, including the finding of the entitlement of the appellant to purchase undivided share alienated by the family member to stranger alienee. As rightly argued, the principles underlying the exercise of the power of remand by the appellate Court has not been properly applied or exercised by the lower appellate Court. Courts have held that only in exceptional cases where the judgment of the trial Court is wholly unintelligible or incomprehensible, the appellate Court can remand the matter for fresh disposal. Order 41, Rule 23 give ample power to the lower appellate Court to decide all issues, including appointment of a Commission for local inspection, secure finding from the trial Court. Even if certain mistakes crept in in the order of the trial court, the same can be rectified by the appellate Court itself, unless there are very compelling circumstances to make an order of remand. An order of remand should not be taken to be matter of course and the power of remand should be sparingly exercised. There should be always endeavour to dispose of the case by the appellate Court itself, when the commissions and omissions made by the first Court could be corrected by the appellate Court. In the case on hand, even if there is omission by the trial court regarding determination of the value of the share purchased by the plaintiff, in the light of the above discussion coupled with the mandate provided under Order 41 Rules 23 and 27, the appellate Court itself can ascertain the value either by appointment of a Commissioner or by getting a report from the trial Court. As said earlier, Section 4 91) of the Act gives option to any member of the family who is a co-sharer in respect of a dwelling house, a portion whereof has been transferred to a person who is not a member of such family, to purchase the share of such transferee if a suit for partition is filed by that transferee. On such option being exercised, the valuation of such share has to be determined. The crucial date for the purpose of fixing the valuation of the share of such transferee is the date when option to purchase in accordance with Section 4 of the Act is exercised by the defendant co-sharer.
15. In the above decision, it was held by this Court that the first appellate Court has got ample powers to decide all the issues, including appointment of advocate commissioner, amendment of pleadings etc., Even if there is any mistake crept in the order of the trial court, the same can also be corrected by the first appellate Court. However, unless there are compelling circumstances, an order of remand should not be passed.
16. In (Bhuvaneswari vs. Saraswathi Ammal) (2005) 3 MLJ 626, the Division Bench of this Court in para 3, held as follows:-
“3. We went through the judgment of the lower appellate Court. As already noted, enough oral and documentary evidence had been let in on the side of the plaintiff as well as on the side of the defendant. An order of remand cannot be for the mere purpose of remanding a proceeding to the lower Court. It is governed by the provisions of the Code of Procedure, commencing from Order 41 Rule 22 onwards. The appellate Judge’s view that in order to enable the parties to have the suit properties identified, an Advocate Commissioner had to be appointed and for that purpose the suit must be remanded to the trial court, in our considered opinion, is not warranted on the facts of the case. If it is possible for the appellate Court to evaluate the evidence made available on record and come to its own conclusion one way or the other, then it is open to the lower appellate Court to come to the aid of the parties for filling up a lacuna which is found wanting in the recoreds.
17. In (M/s. Sekaran Real Estates, a Partnership firm, by Managing Partner K. Chandrasekaran vs. Punjab National Bank, Mylapore Branch, Mylapore, Madras-4, by its Manager) 2000 (I) CTC 613 wherein in para No.4, it was held as follows:-
“It is clear from the above decisions as well as the provisions contained in Order 41, Rules 23 to 29, C.P.C. that duty is cast on the appellate Court to find that the decree of the trial court should be set aside. Even the fact that there are some defects or infirmities in the reasoning of the trial court is not a ground for the appellate court to remand the same to the trial court. The appellate Court should come to the clear conclusion that the findings of the trial court cannot be supported and must be set aside. Only in exceptional cases where the judgment of the trial court is wholly unintelligible or incomprehensible that the apprllate Court can remand the suit for fresh trial. A reading of the judgment of the appellate Court would show that it has not at all considered the judgment of the trial court nor pointed out infirmity or defect in the conclusion. Further, the learned appellate Judge has not borne in mind any of the principles mentioned above. A careful scrutiny of the judgment also shows that he never felt that the judgment of the trial court must be set aside or reversed. After allowing the amendment petition, the appellate court has simply directed the trial court to try the matter once again, after affording further opportunity to the parties, the directions contained in the order of remand are vague and too general in character. The fact that the lower appellate Court has not considered the reasoning or merits of the decree of the trial court has not been disputed by the learned counsel for the respondent-Bank.
18. In (Kannathal and four others vs. Arulmighu Kanniammal Karuppasamy Thirukoil, Pothanur Chettipalayam, Coimbatore, rep. by its Executive Officer and another) 2007 (2) CTC 49, a learned single Judge of this Honourable Court held in para No. 15 and 17 as follows:-
“15. It is also settled law that if the issues arising in the suit could be decided on the evidence available on record, the lower Appellate Court itself should decide the case on merits without unnecessarily ordering remand. A perusal of the pleadings in the case shows that all the necessary pleadings are available on record. Even if the Lower Appellate Court was of the opinion that it was necessary to give an opportunity to the plaintiff to amend the pleadings, that opportunity could have been given in the First Appellate Court itself and for that purpose, the remand is not needed.
16……
17. In the light of the law laid down by the Apex Court in the decisions reported in Ishwardas vs. State of Madhya Pradesh and others, AIR 1979 SC 55 and P. Purusottam Reddy and another vs. Pratap Steels Limited, 2002 (2) ctc 686, this Court is of the considered view that the Lower Appellate Court has committed an error of law in remanding the matter only for the purpose of affording an opportunity to the plaintiff to amend the pleadings and to adduce additional evidence. As laid down by the Apex Court it is not proper for the Appellate Court to remand the case to enable the parties to make good their lapse.
19. In (Sujatha vs. Vijay Anand and another) (2007) 4 MLJ 447, a learned single Judge of this Court in Para No.15 and 16, held as follows:-
“15. In the case on hand, the learned District Judge has not reversed or set aside the finding of the trial court. It is only to give opportunity to the plaintiffs to prove the Will dated 12.08.1982, the lower Appellate Court has remanded that suit to the trial court. The procedure adopted by the learned District Judge is not correct. The District Judge himself got jurisdiction and powers under Order 41 and Section 151 of C.P.C.
16. I am of the opinion that the order of remand of the suit cannot be sustained and therefore, the judgment and decree of the learned District Judge remanding the suit to the trial court are set aside. The learned District Judge is directed to take the first appeal and I.A. No. 53 of 2001 on its file and give opportunity to both parties with regard to the proof of the said document dated 12.08.1982 and dispose of the first appeal on merits.
20. In the aforesaid decisions, it was categorically held that order of remand should not be passed as a matter of course and without giving a finding as to how the decree and judgment of the trial court is perverse, illegal, especially, after amendment to Order 41 Rule 23A of CPC. In the case on hand, the first appellate Court remanded the matter back to the trial court for fresh consideration summarily on the only ground that the documents sought to be produced by the appellant has to be entertained by letting in evidence before the trial court. No finding has been given by the first appellate Court as to how the decree and judgment passed by the trial court is vitiated warranting it to pass an order of remand. In fact, the first appellate Court has not properly assessed the evidence available on record and has also not taken into consideration the legal proposition namely the appeal itself will not lie when the respondent herein has not chosen to file any appeal as against the dismissal of his suit in O.S. No. 402 of 1994 in respect of the very same property. Under those circumstances, the Judgment and Decree passed by the first appellate Court is set aside. The Civil Miscellaneous Appeal is allowed as prayed for. The matter is remanded back to the first appellate Court for disposing of the first appeal on merits and in accordance with law.
20-08-2010
rsh
Index : Yes / No
Internet : Yes / No
To
The Subordinate Judge
Sub Court
Arni
B. RAJENDRAN, J
CMA No. 546 of 2007
20.08.2010