IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 46 of 2007()
1. KUNNATHU KARA HIDAYATHUL ANAM SANGAM,
... Petitioner
2. K.M.POKER HAJI, S/O.AHAMMED KUTTY,
Vs
1. P.KUNHABDULLA HAJI,
... Respondent
For Petitioner :SRI.N.L.KRISHNAMOORTHY
For Respondent :SRI.B.KRISHNAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :19/03/2009
O R D E R
M. SASIDHARAN NAMBIAR, J.
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F.A.O. No. 46 OF 2007
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Dated this the 19th day of March, 2009
J U D G M E N T
Defendants in O.S.9 of 2003 on the file of Munsiff
Court, Payyoli are the appellants. Respondent is the plaintiff.
Respondent instituted the suit seeking a decree (a) declaring
that the letter dated 24.6.2002 (Ext.X1) is not signed by him, and
(2) for a consequential injunction restraining second appellant
from claiming any right to the post of manager of Kunnathukara
M.L.P. School on the strength of the said letter. Respondent
instituted the suit contending that he was the founder President
and a member of the first appellant Society and in his capacity as
founder President, he had purchased the school and the land
where the aided school is functioning and the Education
department had recognised the respondent as the manager of
the school and in 1983 he relinquished the post of the President
of the first appellant Society, but continued as manager and later
he got information that the second appellant produced Ext.X1
letter purportedly issued and signed by the respondent before
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Assistant Educational Officer, Vadakara whereby it was informed
that respondent had relinquished the post of the President and
manager in favour of the second appellant. It is contended that
that letter is a forged and fabricated document and was not
executed by him and therefore he is entitled to a declaration and
injunction sought for.
2. Appellants in the written statement contended that
second appellant was appointed as the manager of
Kunnathukara M.L.P. School by the first appellant and as per
proceedings dated 26.10.2002 his appointment was duly
approved by the Assistant Educational Officer, Vadakara and
with effect from 1.2.2002 second appellant is functioning as the
manager and respondent ceased to be manager with effect from
1.2.2002. It was also contended that remedy of the respondent
is to file an appeal against the order of Assistant Educational
Officer approving change in the managership and in any case
Ext.X1 letter was voluntarily signed and issued by the
respondent and is not a forged or fabricated document and
therefore respondent is not entitled to the decree sought for.
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3. Learned Munsiff on the evidence of PW1, DW1 and
Exts.A1 to A4 and B1 to B3 and X1 dismissed the suit holding
that respondent did not establish that Ext.X1 letter is a forged or
fabricated document. Respondent challenged the judgment
before Additional District Court, Vadakara in A.S.33 of 2004.
Learned Additional District Judge finding that respondent has
not sought proper relief as he should have sought a declaration
that he is the manager of the school, held that a suit as provided
under section 34 of Specific Relief Act should have been framed.
It was also found that the burden is on the respondent to
establish that Ext.X1 letter is a forged one and he should have
got Ext.X1 letter compared by an expert with the admitted
signatures and therefore set aside the judgment and remanded
the suit to the trial court. The said judgment is challenged in the
appeal.
4. The appeal was admitted formulating the following
substantial question of law.
Whether the first Appellate Court was justified in
remanding the appeal invoking the power
provided under Rule 23A of Order XLI of Code of
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Civil Procedure without deciding the appeal on
merits on the evidence on record ?
5. Learned counsel appearing for appellants and
respondent were heard.
6. The suit as framed is for a declaration that Ext.X1
letter purportedly signed and issued by the respondent to the
Assistant Educational Officer, Vadakara, which was admittedly
acted upon by the Assistant Educational Officer, was not signed
or sent by the respondent. A consequential relief of injunction
restraining second appellant, whose appointment as the manager
of the school was approved by the Assistant Educational Officer
pursuant to Ext.X1 letter was also sought. The injunction sought
for is to restrain second appellant from claiming any right to the
post of the manger on the strength of Ext.X1 letter. Learned
Munsiff on the evidence found that respondent did not succeed
in establishing that Ext.X1 letter was not signed and issued by
the respondent and dismissed the suit. That judgment was
challenged in the first appeal before Additional District Court,
Vadakara. Learned Additional District Judge did not consider
the evidence but found that the finding of the learned Munsiff
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that Ext.X1 was not proved to be not signed and issued by the
respondent is not correct. The learned Additional District Judge
proceeded on the basis that the actual dispute between the
parties is with regard to the managership of the school and
whether respondent continued to be the manager after
relinquishing the post of the President of the first appellant
Society or whether he had relinquished the post of the manager
also as stated in Ext.X1. Learned District Judge on that basis
found that the respondent should have sought a declaration
about his status as a manager and remanded the suit to the trial
court for appropriately amending the plaint. The judgment itself
shows that the respondent has no such case and he did not seek
a remand for amending the plaint as stated in the judgment.
Instead, learned District Judge felt that the suit should be
amended and therefore remanded the suit. As rightly pointed
out by the learned counsel appearing for the appellants, learned
District Judge was not justified in remanding the suit without
considering the correctness of the judgment in the trial court. In
the light of the pleadings and the issue settled, the assumption
that the relief in the suit should have been a different one is not
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justified when even respondent has no such case.
7. The powers of the appellate court to remand a suit to
the trial court in view of incorporation of Rule 23A of Order XLI
of Code of Civil Procedure is settled by the Apex Court in P.
Purushottam Reddy and another Vs. M/s. Pratap Steels
Ltd. (AIR 2002 SC 771) as follows.
” 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 23A in Order 41 of the Code of Civil
Procedure by CPC Amendment Act, 1976, there
were only two provisions contemplating remand
by a Court of appeal in Order 41 of 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
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7determine 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 1976 Amendment that the Court, in an
appropriate case could exercise its inherent
jurisdiction under Section 151 of the 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 of the CPC. In cases
where additional evidence is required to be
taken in the event at any one of the clauses of
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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 23A 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 23A as it is under Rule 23. After the
amendment all the cases of wholesale remand
are covered by Rule 23 and 23A. In view of the
express provisions of these rules, the High
Court cannot have recourse to its inherent
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powers to make a remand because, as held in
Mahendra v. Sushila (AIR 1965 SC 365, 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 the
Rules 23 and 23A. 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
11, Rule 31 of the CPC and hence it is no
judgment in the eye of law it may set aside the
same and send the matter back for re-writing
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
23A or Rule 25 of the CPC. An unwarranted
order of remand gives the litigation an
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undeserved lease of life and therefore, must be
avoided. ”
8. The suit as instituted is for a declaration that
respondent did not sign and did not issue Ext.X1 letter. If
respondent successively establish that fact, he is entitled to get
such a declaration. The question whether by getting such a
declaration the respondent could get the approval of the second
appellant as manager unsettled or not, is not a matter to be
decided in the suit or the appeal in the light of the relief sought
for in the suit and the pleadings. In such circumstances the
question of production of bye-law is not relevant and for that
purpose learned Additional District Judge should not have
remanded the suit. On going through the judgment of the first
appellate court it is absolutely clear that first appellate court did
not dispose the appeal on merits as mandated under the Code.
The order of remand is illegal and it is therefore set aside.
Appeal is allowed. The judgment of the Additional District
Court, Vadakara dated 27.9.2006 is set aside. A.S.33 of 2004 is
remanded to Additional District Court, Vadakara for fresh
disposal in accordance with law. The first appellate court has to
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consider whether the evidence on record establish that Ext.X1
was not signed and issued by the respondent. If the respondent
files an application to send Ext.X1 to an expert, the question
whether it is to be sent or not is to be considered by first
appellate court on merits. Send back the records immediately.
Parties are directed to appear before Additional District Court,
Vadakara on 22.5.2009.
M. SASIDHARAN NAMBIAR, JUDGE
okb
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