IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.07.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.1871 of 2002 U.Muniyandi ... Appellant Vs. 1.Prince Aiya 2.A.Kannammal 3.A.Muniyammal 4.L.Vasantha 5.A.Usha 6.R.Lakshminarayan ... Respondents Prayer: Appeal filed under Order 43 Rule (1) (U) of C.P.C. against the judgment and decree dated 18.04.2002 in A.S.No.129 of 2001 on the file of the Court of Principal District Judge, Nagapattinam, set aside and remand the judgment and decree dated 10.10.2001 in O.S.No.75 of 1999 on the file of the Court of Principal Subordinate Judge, Nagapattinam. For Appellant : Ms.R.T.Shyamala For Respondents : Ms.T.Aanandhi JUDGMENT
This Civil Miscellaneous Appeal has been directed against the Judgment and Order of remand dated 18.04.2002 passed by the Principal District Judge, Nagapattinam in A.S.No.129 of 2001.
2.The appellant herein, U.Muniyandi had filed the original suit O.S.No.75 of 1999 on the file of Principal Subordinate Judge, Nagapattinam for the relief of declaration and recovery of possession. A prayer for mandatory injunction for the removal of the superstructure was also incorporated in the plaint, if at all it was found that there was such a superstructure. All the respondents herein were arrayed as the defendants in the said suit. A.Muniyandi (since deceased) and Prince Aiya (first respondent herein) who had been arrayed as the 2nd and 7th defendants respectively alone contested the suit by filing separate written statements. The 2nd defendant claimed title by virtue of the provisions of the Tamil Nadu Kudiyiruppu Act, 1971 besides denying the plaint allegations. The first respondent herein/7th defendant is the purchaser of the suit property from the father of the 2nd defendant having purchased the same under a registered sale deed dated 27.10.1997. The first respondent herein/7th defendant, besides making averments similar to those made by the 2nd defendant, also contended that he had perfected title by adverse possession to the suit properties. All other defendants remained exparte.
3.The trial Court framed as many as 10 issues and tried the suit. In the trial, P.W.1 to P.W.3 were examined and Ex.A.1 to A.8 were marked on behalf of the plaintiff. On behalf of the defendants, D.W.1 and D.W.2 were examined and seven documents were marked as Ex.B.1 to Ex.B.7. At the conclusion of trial, the trial Court considered the evidence brought before it, in the light of the arguments advanced on either side and upon such a consideration, decreed the suit as prayed for granting all the three reliefs sought for in the plaint.
4.The Judgment and Decree of the trial Court dated 10.10.2001 was challenged by the first respondent herein/7th defendant before the lower appellate Court in A.S.No.129 of 2001. The learned Principal Sessions Judge, after hearing both sides and upon considering the materials available on record, came to the conclusion that the appellant herein/ plaintiff had traced his title to the sale deed dated 25.09.1978 marked as Ex.A.1, but the evidence revealed that up to the date of filing of the suit he was out of possession of the suit property. The learned appellate Judge also referred to the admitted fact that the attempt made by the appellant herein/plaintiff to evict the father of the second defendant based on his contention that he was in possession as a tenant under the appellant, was negatived by the Rent Controller and the same was also confirmed the appellate authority. In view of the the said facts, the learned appellate Judge came to the conclusion that the question of limitation should have been decided by the trial Court and that since the trial Court did not frame any issue regarding limitation, it became necessary for the appellate Court to set aside the decree of the trial Court and remand the suit for fresh disposal after framing the issue on limitation.
5.The said judgment of the lower appellate Court and order of remand is challenged by the appellant herein/plaintiff in this civil miscellaneous appeal on various grounds set out in the memorandum of appeal.
6.The only question that arises for consideration in this civil miscellaneous appeal is:
“Whether the order of remand made by the learned Principal District Judge (lower appellate Judge) is within the permissible limits of the power of the lower appellate Court under Rule 23 and 23-A of Order 41 C.P.C.?”
7.This Court heard the submissions made by Ms.R.T.Shyamala, learned counsel for the appellant and Ms.T.Aananthi, learned counsel for the contesting respondents. The materials available on record were also perused.
8.As against an order of remand remitting the original suit to the trial Court for fresh disposal, the present civil miscellaneous appeal has been filed. The plaintiff, who proved to be successful before the trial Court, in whose favour a decree had been passed by the trial Court in the original suit which was later on set aside by the lower appellate Court, is the appellant in the civil miscellaneous appeal.
9.The learned counsel for the appellant submitted that the order of remand made by the lower appellate Court could not be sustained in so far as the same would create an avenue for the contesting respondents to fill up the lacuna in their case; that an order of remand could not be passed outside the purview of Rules 23 and 23-A of Order 41 C.P.C.; that the question of limitation, if at all necessary to be decided, should have been decided by the appellate Court itself either on the available materials or after allowing the parties to adduce additional evidence before itself or after calling for a finding regarding the same from the trial Court; that the failure on the part of the lower appellate Court to adopt such a procedure would show that the order of remand was not sustainable in law and that in any event, the order of remand passed by the lower appellate Court should be set aside.
10.Per contra, the learned counsel for the respondents would contend that the question of limitation has to be gone into by the Court even without there being a pleading to that effect; that on a consideration of evidence, the lower appellate Court came to a correct conclusion that the question of limitation had to be framed as a separate issue and a decision should be rendered on that issue also; that as the said issue was not framed in the trial Court, the parties did not have the opportunity of leading evidence particularly regarding the said issue and hence, there was nothing wrong in the order passed by the lower appellate Court in remanding the matter for framing such an issue and deciding the case de novo based on any additional evidence to be adduced on the question of limitation and that hence the present civil miscellaneous appeal should be dismissed as not meritorious.
11.The learned counsel for the appellant in support of her contention that an order of remand should not be made so as to enable the parties to fill up the lacuna in their cases relied on two Division Bench Judgments of this Court namely,
(i)Subbiah Konar and others V. State of Tamil Nadu through District Collector, Tirunelveli and another reported in (2003) 3 M.L.J. 524; and
(ii)S.Shanmugham V. 1.S.Sundaram, 2.S.Vasudevan, 3.Valliammal, 4.Saraswathy, 5.Leelavathy reported in 2005-3-L.W. 366.
In both cases, the concerned Division Benches of this Court expressed a uniform view that an order of remand could be passed only under Rules 23 or 23-A of Order 41 C.P.C. and falling back on the residuary power or inherent power of the Court to pass such an order was not proper. A general provision regarding the inherent powers of the High Court can be resorted to only in cases wherein there is absence of specific provision-was the observation made in the above said cases by the concerned Division Benches. Of course, it is true that a suit cannot be remanded on the sole ground that evidence adduced by the parties are insufficient in which case alone it will amount to allowing the parties to fill up the lacuna.
12.On the other hand, in the case on hand, a new issue which was not at all framed by the trial Court was held to be a necessary issue for the disposal of the case and hence, the lower appellate Court had chosen to remit the matter back to the trial court with a direction to frame the said issue and dispose of the suit based on a decision to be arrived at regarding the said issue. When a new issue is found to be an essential issue to have been framed in the suit, it becomes necessary to allow the parties to adduce evidence touching the said issue so that the parties may not come with a complaint, at a later stage, that they were not given opportunity to adduce evidence in respect of such issue. Only in that context, the learned lower appellate Judge seems to have decided to remit the matter back to the trial Court for a fresh disposal.
13.As already pointed out, though there is no direct plea incorporated in the written statements of the contesting defendants that the suit was barred by limitation, there was a plea made by the first respondent herein/7th defendant that he had perfected title by adverse possession. Of course the plea of adverse possession has to be proved by the person making the same. The plaintiff’s claim of title to the property is based on Ex.A.1-Sale Deed dated 25.01.1978. Admittedly, the plaintiff is out of possession till the date of suit and the rent control proceedings was initiated against the father of second defendant by the plaintiff also ended in failure.
14.In the light of the said pleadings and the admitted fact that the appellant/plaintiff is out of possession from 1978 to till the date of filing of the suit, there is nothing wrong in the finding of the lower appellate Court that the issue regarding limitation becomes a necessary one to be framed and decided. When the appellate forum finds such an issue has to be framed for the disposal of the suit, there are two other ways of disposal of the same, viz: (i) by giving the parties to adduce additional evidence before the appellate forum itself or by directing the trial Court to record the additional evidence and transmit the same to the appellate Court exercising its power under Rule 28 or Order XLI C.P.C. or (ii) by calling for a finding on the said issue from the trial Court. But the availability of such a course of action will not take away the power of the appellate forum to remand the matter to the trial Court itself for fresh disposal of the case after recording a finding on the said issue. Of course, before recording such a finding, the parties are to be given a chance to lead evidence on the new issue.
15.For all the reasons stated above, this Court comes to the conclusion that there is no defect or infirmity in the order of remand passed by the lower appellate Court and the same cannot be interfered with and that the civil miscellaneous appeal challenging the said order of remand has got to be dismissed.
Accordingly, the Civil Miscellaneous Appeal is dismissed. No costs.
Sgl
To
1.The Principal District Judge,
Nagapattinam.
2.The Principal subordinate Judge,
Nagapattinam