IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO No. 138 of 2007()
1. A.ANSARI, S/O AHAMMED KANNUR RAWTHER,
... Petitioner
Vs
1. RASHEED, S/O SAITHMOHAMMED,
... Respondent
2. NABEESA UMMERKHAN,
3. JALEELA D/O UMMERKHAN, OF DO.
4. SHEMEENA D/O UMMERKHAN, DO. DO.
5. LIAKATH ALIKHAN, S/O UMMERKHAN OF DO. DO
6. SHEBEENA D/O UMMERKHAN OF DO. DO.
7. SULFIKAR ALIKHAN,
For Petitioner :SRI.T.I.ABDUL SALAM
For Respondent : No Appearance
The Hon'ble MR. Justice K.PADMANABHAN NAIR
Dated :30/05/2007
O R D E R
K.PADMANABHAN NAIR, JUDGE.
=====================
F.A.O. No. 138 OF 2007
and
F.A.O. No. 139 OF 2007
---------------------------
Dated this the 30th day of May, 2007
========================
JUDGMENT
The plaintiffs in O.S.30/97 on the file of Munsiff Court, Changanassery, is
the appellant in both these appeals. He was the 2nd defendant in O.S.83/97 filed
by the first respondent before the Munsiff Court, Changanassery. The appellant
filed a suit for permanent prohibitory injunction. Respondent filed a suit for
declaration of title, fixation of boundary and cancellation of a document and for
a permanent prohibitory injunction. Both suits were tried jointly. The trial court
decreed the suit filed by the appellant and dismissed O.S.83/97 filed by the first
respondent. Challenging those decrees and common judgment, the first
respondent filed A.S.119/05. He along with respondents 2 to 6 filed A.S.118/05
also. The District Judge heard both appeals together. Before the appellate
court appellant filed a petition under Order 41 Rule 27 of C.P.C. to accept
additional evidence with documents. The lower appellate court after considering
the evidence on record held that evidence on record was not sufficient to resolve
the dispute finally. The appellate court was of the opinion that both sides can
be given an opportunity to adduce further evidence. The decrees and judgment
were set aside and both suits were remanded. Challenging the remand order,
these appeals are filed.
2. I have carefully gone through the judgments rendered by the
learned District Judge. The learned District Judge found that the plaintiff in
F.A.O. No. 139 OF 2007 2
O.S.83/97 has failed to establish that item no.1 is a part of item no.2. It was
also found that report and plan submitted by the commissioner is not helpful for
deciding the matter. The lower appellate court also found that the first
defendant in that suit who was the plaintiff in the other did not produce his title
deed. So it was held that it was only just and proper to give an opportunity to
both sides to adduce further evidence. There is no finding much less any
observation regarding the merits of the case. It is an open remand. It is to be
noted that the appellant himself was not satisfied with the evidence adduced
before the trial court. That is the reason why he filed a petition under Order 41
Rule 27 of C.P.C. to adduce further evidence. I do not find any reason to
interfere with the order of remand. Considering the entire facts, it is only just
and proper that the trial court makes every endeavour to dispose of the suit as
expeditiously as possible at any rate within three months.
In the result, the appeals F.A.O.138/07 and 139/07 are dismissed. There
will a direction to the learned Munsiff, Changanassery to expedite the trial and
dispose of the suits as expeditiously as possible at any rate within three months
from the date of receipt of a copy of this judgment. The learned Munsiff shall
give reasonable opportunity to both sides to adduce further evidence.
K.PADMANABHAN NAIR
JUDGE.
bkn