IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 13 of 2007()
1. BHASKARAN, S/O.KUNHIRAMAN,
... Petitioner
2. NARAYANAN, S/O.KUNHIRAMAN, DO. DO.
3. JANU, D/O.KUNHIRAMAN, DO. DO.
4. JANU, D/O.KUNHIRAMAN, DO. DO.
5. SASI, S/O.KUNHIRAMAN, DO. DO.
Vs
1. MADATHIKKANDI KELPPAN, S/O.UNNARA,
... Respondent
2. NARAYANAN, S/O.UNNARA,
3. MADATHIKKANDI VASU, S/O.UNNARA,
4. RAMAN, S/O.UNNARA,
5. PONNARI AMMALU, D/O.UNNARA,VALLIATT,
6. GOPALAN, S/O.UNNARA,
7. PUTHANPURAYIL KALLIANI, W/O.KUNHIRAMAN,
For Petitioner :SRI.C.P.MOHAMMED NIAS
For Respondent :SRI.B.KRISHNAN
The Hon'ble MR. Justice V.RAMKUMAR
Dated :29/07/2009
O R D E R
V. RAMKUMAR, J.
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F.A.O.No.13 of 2007
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Dated this the 29th day of July, 2009
JUDGMENT
The plaintiff Nos.2 and 4 to 7 in O.S.No.9 of 2002 on the
file of the Munsiff’s Court, Payyoli are the appellants in this
appeal filed under Order 43 Rule 1(u) of the Civil Procedure
Code. They are challenging the remand order passed by the
lower appellate court namely Sub Court, Koyilandi in R.S.A.No.2
of 2003. The aforesaid suit was filed by the appellants and the
1st plaintiff for a perpetual injunction. The suit was resisted by
the defendants who filed a joint written statement incorporating
their contentions.
2. The trial court framed the following three issues for
trial.
1. Whether the suit is maintainable?
2. Whether the prayer for permanent prohibitory
injunction is allowable?
3. Reliefs and costs?”
The learned counsel for the respondents/defendants submits that
the trial court had cast one additional issue as follows:-
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“Whether the plaintiffs are in possession of the
plaint schedule property?”
On the side of the plaintiffs, 2nd plaintiff was examined as PW1
and Exts.A1 to A13 were got marked. On the side of the
defendants, three witnesses were examined as DW1 to DW3 and
Exts.B1 and B6 were got marked.
3. The learned Munsiff, after trial, as per judgment and
decree dated 20.12.2002 decreed the suit with costs as prayed
for.
4. Aggrieved by the judgment and decree passed by the
trial court, the defendants filed R.F.A.No.2 of 2003 before the
Sub Court, Koyilandi. The lower appellate court as per the
impugned judgment dated 13.10.2006 has set aside the
judgment and decree passed by the trial court and has remanded
the matter to the trial court with a direction for disposal afresh
after framing proper issues. It is the said remand order which is
assailed in this appeal filed by plaintiffs 2 and 4 to 7.
5. Heard both sides.
6. One of the main criticism made by the lower appellate
court against the trial court is that the trial court did not frame
an issue as to whether the plaintiffs have proved that they were
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in possession of the plaint schedule property. First of all, the
trial court had on 30.11.2006 framed an additional issue to that
effect. Secondly, even Issue No.2 as originally framed was as to
whether the prayer for permanent prohibitory injunction is
allowable and that is comprehensive enough to include the
question as to whether the plaintiffs have established their
possession of the suit property as on the date of the suit. It is
only on proof of possession of the suit property that the plaintiffs
in a suit for injunction can hope to get a decree in their favour.
Such an issue was already there and the trial court had framed
an additional issue as indicated above, though not adverted to in
the judgment. In any view of the matter, the parties and their
counsel were very much aware of the issues in the suit and the
parties went to trial with the full awareness of the issue involved.
Both sides adduced oral and documentary evidence in support of
their respective contentions. Hence, even assuming that there
was no issue cast as to whether the plaintiffs have proved their
possession of the suit property on the date of the suit, it cannot
be said that any prejudice was suffered by the defendants.
7. Another ground made mention of in the remand order
is that the trial court did not consider some of the evidence
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already adduced. The lower appellate court would say that
eventhough the plaintiffs had produced 13 documents as Exts.A1
to 13, the trial court failed to take into consideration those
documents except discussing them in one line in the judgment.
Even assuming that the said criticism is true the lower appellate
court which is also a court of facts and which by virtue of Section
107 C.P.C has all the powers of the trial court, was bound to
consider oral and documentary evidence in the case and arrive at
its own conclusion. This is a case where there was a full
fledged trial before the court of first instance. If the trial court
had recorded its findings only on a preliminary issue and had
disposed of the suit without entering findings of the other issues,
the lower appellate court would have been justified in exercising
the power under Order 41 Rule 23 C.P.C. In a case where there
has already been a trial on evidence before the court of first
instance, the appellate power of remand should not be exercised
merely because the appellate court is of the view that the parties
who could lead better evidence have failed to do so. (See India
Army and Police Equipment v. Kanadia Brothers – 1968 KLT
(SN) 19 (SC) and Sekharan Nambiar v. Ramanunni Nambiar
– 1992(1) KLT429. As far as possible, the appellate court should
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avoid a remand unless it is absolutely essential (See
Sundaresan Nair v. Dr.Krishnankutty Nair (2007(2) KHC
414). The lower appellate court by finding fault with the trial
court in not framing proper issues in a case where proper issues
have, in fact been framed, and by criticising the Trial Court that
it had failed to advert to some of the evidence adduced by the
parties, was virtually shirking its duties as an appellate court.
The order of remand passed by the lower appellate court cannot
be supported at all. It is accordingly set aside and R.F.A.No.2
of 2003 filed before the Sub Court, Koyilandi is restored to file
and the appellate court shall dispose of the appeal on merits on
the evidence already on record, after giving both sides an
opportunity to be heard and untrammeled by the observations in
this judgment. This appeal is allowed as above. No costs. The
parties shall appear before the lower appellate court on
26.8.2009 without any further notice.
Dated this the 28th day of July, 2009.
V. RAMKUMAR, JUDGE
sj
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