BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/04/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD) No.1200 of 2001 Thangathurai .. Appellant/Respondent/Plaintiff Vs 1.Arumuga Nadar 2.Kasithangam 3.Panneerselvam .. Respondents/Appellants/Defendants Prayer Appeal filed under Order 43 Rule 1(u) of the Code of Civil Procedure, against the Judgment and Decree dated 28.07.2000 passed in A.S.No.78 of 1999 on the file of the Principal District Judge, kanyakumari District at Nagercoil, in setting aside the judgment and decree by remanding the same, dated 10.06.1999 passed in O.S.No.45 of 1997 by the learned District Munsif Court, Nagercoil. !For Appellant ... Mr.Thirumahilmaran ^For Respondents ... No representation :JUDGMENT
This appeal is focussed as against the Judgment and Decree dated
28.07.2000 passed in A.S.No.78 of 1999 on the file of the Principal District
Judge, kanyakumari District at Nagercoil, in setting aside the judgment and
decree by remanding the same, dated 10.06.1999 passed in O.S.No.45 of 1997 by
the learned District Munsif Court, Nagercoil.
2. Heard the learned Counsel for the appellant. Despite printing the name
of the respondents, no one appeared.
3. The parties, for convenience sake, are referred to, according to their
litigative status before the trial Court.
4. A re’sume’ of facts absolutely necessary and germane for the disposal
of this appeal would run thus:
The plaintiff filed the suit in O.S.No.45 of 1997 for declaring that the
alleged marriage taken place between the plaintiff and the third defendant is
non-est and no such marriage had taken place. Whereas the defendants
contested the suit pleading that such marriage did take place.
5. The defendants entered appearance before the trial Court. During
trial, on the side of the plaintiff, P.W.1 to P.W.4 were examined and Exs.A.1 to
A.3 were marked and on the side of the defendants, D.W.1 to D.W.3 were examined
and Exs.B.1 and B.2 were marked.
6. Ultimately, the trial Court decreed the suit.
7. Challenging the judgment and decree of the trial Court, the defendants
preferred the appeal in A.S.No.78 of 1999 before the Principal District Court,
Kanyakumari District at Nagercoil, which Court set aside the judgment and decree
of the trial Court and remanded the matter back to the trial Court for examining
the priest who allegedly solemnised the marriage in the temple concerned.
8. Being dissatisfied with the order of remand by the first appellate
Court, this appeal has been filed by the plaintiff on various grounds including
the one that the first appellate Court was not justified in remanding the matter
to the trial Court when already enough evidence was available on the side of the
plaintiff.
9. The point for consideration is as to whether the order of remand passed
by the first appellate Court is without any basis and against the judicial
precedents?
10. The learned Counsel for the plaintiff would argue that the defendants
before the trial Court have not chosen to examine the priest who allegedly
solemnised the marriage and they have not taken steps to get the expert opinion
on Ex.P.1, the alleged extract of the Marriage Register wherein the defendants
claimed as though the plaintiff also had put his signature. Accordingly, he
prayed for setting aside the order of the remand and for directing the first
appellate Court to decide the appeal suit on merits finally.
11. The perusal of the judgment and decree of the first appellate Court
would evince and evidence that in its view, some vital evidence was missing in
the matter. The first appellate Court is entitled to have its own view relating
to adequacy or otherwise of the evidence adhered by either side.
12. Now the core question arises as to whether the first appellate Court
was justified in remanding the matter back to the trial Court.
13. It may be argued as though the first appellate Court itself could have
entertained the evidence, but, in this case, it had not chosen to do so.
14. Even though Order 41 Rule 27 of the Code of Civil Procedure
contemplates that even oral or documentary evidence can be entertained by the
first appellate Court, there are certain difficulties in doing so. In some
matters, in the event of adducing additional evidence by one side, the other
side may have to counter it by adducing evidence on its side. Then, it would
amount to converting the appellate Court into a trial Court. If only a few
documents which are authentic in nature, but failed to be produced before the
trial Court, then the first appellate Court under Order 41 Rule 27 of the Code
of Civil Procedure, could entertain them instead of remanding the matter.
15. But, here, the nature of the case as set out supra would warrant
effective cross-examination if such priest is examined and furthermore counter
evidence also may ensue at the instance of the plaintiff. In this factual
matrix, the first appellate Court by adopting a posteriori approach was right in
not entertaining before it such evidence and it remanded the case to the trial
Court for taking further evidence.
16. The learned Counsel for the plaintiff cited the decision in
Arockiaprakash v. Rangasamy reported in 2007 (3) CTC 383 which is on a different
footing as the first appellate Court in that case held that the lower Court
before remanding the matter failed to arrive at a conclusion that the decision
rendered by the trial Court was erroneous.
17. Here, the perusal of the judgment of the first appellate Court would
clearly demonstrate that in the absence of such clinching evidence, he did not
agree with the decision of the trial Court and remanded the matter.
18. The learned counsel for the plaintiff also cited the decision of this
Court in Srinivasagam Pillai v. Kuttiah and others reported in AIR 1989 MADRAS
18 which is on the same footing as the one cited supra. The same comments
offered relating to the earlier precedent would also be applicable to the second
cited decision.
19. The learned Counsel for the plaintiff also cited the decision in
Koyappathodi M.Ayisha Umma v. State of Kerala reported in AIR 1991 SUPREME COURT
2027 which is relating to the land acquisition matter. In that, the Honourable
Apex Court took exception on the part of the appellate Court in remanding the
matter back to the lower Court for entertaining the evidence relating to the
value of the land, even though evidence was available before it. Here, it is a
matrimonial matter where the defendants have come forward with a specific case
that the marriage between the plaintiff and the third defendant was solemnised
by a priest in the temple and in his presence alone, the bridegroom tied the
thali around the neck of the bride. This important evidence was not before the
trial Court and thereupon, the first appellate Court, keeping in mind the
responsibility of the Court in matrimonial matters, remanded the matter for
entertaining such evidence and by no stretch of imagination, it could be stated
that such remanding of the matter was an illegality.
20. In this view of the matter, I could see no infirmity in the order
passed by the first appellate Court.
21. In the result, there is no merit in this appeal and the same is
dismissed. However, in view of the lapse of enormous time in prosecuting this
Civil Miscellaneous Appeal, I would like to direct the trial Court to dispose of
the original suit within a period of three months from the date of receipt of a
copy of this order. No costs.
rsb
To
1.The Principal District Judge,
Kanyakumari District at
Nagercoil.
2.The District Munsif Court,
Nagercoil.
