CoramThe Honourable Mr v. T.P.Ponnusamy2.T.P.Paramasivam3.Chennimalai Gounder4.N.S.Ramasamy5.Pappathy

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 31-8-2007CoramThe Honourable Mr.Justice N.PAUL VASANTHAKUMARC.M.A.No.2083 of 20001.Manickavasagam2.Yasodharan3.Moorthy @ Dhakshinamoorthy..Appellants (Defendants 2 to 4)Vs.1.T.P.Ponnusamy2.T.P.Paramasivam3.Chennimalai Gounder4.N.S.Ramasamy5.Pappathy...Respondents (Plaintiff & Defendants 1,5,6 & 7)This Civil Miscellaneous Appeal is preferred against theJudgment and Decree dated 11.7.2000 made in A.S.No.36 of 2000 onthe file of the Principal District Judge, Erode, modifying theJudgment and Decree dated 27.12.1999 made in O.S.No.191 of 1998 onthe file of the District Munsif Court-cum-Judicial Magistrate,Perundurai.For Appellants:Mr.N.ManokaranFor 1st Respondent:Mr.G.EthirajuluJ U D G M E N TThis Civil Miscellaneous Appeal is preferred against theJudgment and Decree dated 11.7.2000 made in A.S.No.36 of 2000 on https://hcservices.ecourts.gov.in/hcservices/ the file of the Principal District Judge, Erode, modifying theJudgment and Decree dated 27.12.1999 made in O.S.No.191 of 1998 onthe file of the District Munsif Court-cum-Judicial Magistrate,Perundurai.2.The Plaintiff/first respondent herein filed the suit inO.S.No.191 of 1998 seeking declaration and permanent injunctioncontending that he is the absolute owner of the suit 'A' Scheduleproperty by virtue of settlement deed dated 28.6.1994, and theright to take water through 'B' Schedule property for irrigation.The appellants/defendants 2 to 4 denied the genuineness of thetitle deed contending that they are the absolute owners of theproperty in R.S.No.1013/4 and they are having share in 'B' Scheduleproperty and for the past over 50 years their ancestors have beenusing the suit 'B' schedule property to irrigate their lands.3.The Trial court, after considering the oral anddocumentary evidence rendered a finding against the plaintiff/firstrespondent herein and dismissed the suit on 27.12.1999, againstwhich the Plaintiff/first respondent herein filed A.S.No.36 of 2000before the Principal District Judge, Erode. The appellate Courtremanded the suit back to the Trial Court for giving a finding withregard to Ex.A-3 and A-4.4.The said remand order passed by the appellate Court ischallenged by the appellants/defendants 2 to 4 in this appeal bycontending that the appellate Court itself ought to have consideredthe materials on record and should have decided the appeal onmerits by either reversing or modifying or confirming the decree.It is also contended that the appellate Court having not given afinding with regard to the decision of the Trial Court, withoutassigning any valid reason to remand, passed an order of remand andby remanding the matter, the plaintiff/first respondent herein isgiven undue advantage to fill up the lacunae in the evidence onrecord and the same is in effect violation of Order 51 Rule 27 CPC.5.The learned counsel appearing for theappellants/defendants 2 to 4 submitted that the only reason givenby the lower appellate Court for remanding the matter is to give afinding with regard to Ex.A-3 and A-4 and the Trial Court havingconsidered the said documents and given its findings, the saidfindings is valid or not can very well be decided by the lowerappellate Court itself, for which no remand is required,particularly when no fresh evidence is required to be let in. Thelearned counsel also cited the decisions of this Court reported in1996 (II) CTC 539 (Poolar v. Gomathi Moopanar and 2 others), 2005 https://hcservices.ecourts.gov.in/hcservices/ (3) LW 366 (S.Shanmugham v. Su.Sundaram & 4 others)(DB) and thejudgment of the Supreme Court reported in (2006) 4 MLJ 1842 (Hameed(D) by LRs. and others v. Kummottummal Kunhi P.P.Amma (D) by LRs.and others) and argued that the lower appellate Court having notexercised its jurisdiction by deciding the matter on its own, theorder of remand is unsustainable.6.The learned counsel appearing for the firstrespondent/plaintiff submits that the reason given by the appellateCourt to remand the matter to consider the averments in Exs.A-3 andA-4 and its finding is within the powers of the lower appellateCourt and no interference is called for in the said order ofremand.7.I have considered the rival submissions made by thelearned counsel appearing for the appellants as well as the learnedcounsel appearing for the first respondent.8.The point in issue is whether the lower appellate Courtitself could have considered the averments in Exs.A-3 and A-4without remanding the matter to the Trial Court and whether withoutgiving a finding as to the validity of the Trial Court order,remand order could be made under Order 41 Rule 23 to 29 CPC.9.A fair reading of the order of the lower appellate Courtshows that the only reason for ordering remand is that the TrialCourt did not consider the averments in Exs.A-3 and A-4. Noevidence is ordered to be recorded and hence appreciation of theaverments in Exs.A-3 and A-4 could very well be made by the lowerappellate Court itself as it has got every power to go into thefactual aspects and is empowered to take a different view.Therefore, the reason given by the lower appellate Court forremanding the matter cannot be a valid reason. Further, whetherthe conclusion arrived at by the trial Court on the assessment ofthe evidence on record and exhibits marked are correct or not hasnot been stated by the lower appellate Court while ordering remandand the same is also contrary to the power of remand given to thelower appellate Courts under Order 41 Rule 23 A.10.A Division Bench of this Court in the decision reportedin 2005 (3) LW 366 (S.Shanmugham v. S.Sundaram & 4 others) heldthat under Order 41 Rule 23 to 29 CPC, for finding out a fact,there is no necessity to remand the matter back to the trial courtand the lower appellate Court itself can try the matter even aftertaking further evidence for determining the issue and dispose ofthe appeal on merits. https://hcservices.ecourts.gov.in/hcservices/

11.As per Order 41 Rule 23 to 29, a duty is cast upon thelower appellate Court to find as to whether the decree of the TrialCourt should be set aside and even if there are some defects andinfirmities in the reasoning given by the Trial Court, it is not aground to remand the same. The lower appellate Court must give areason by stating that the finding of the trial court cannot besupported and must be set aside and in exceptional cases only theappellate court can remand the suit for fresh trial.12.A Division Bench of this Court in the decision reportedin 1989 (2) LW 414 (Visalakshmi Ammal v. Dhanalakshmi Ammal) heldthus,"The unsatisfactory consideration of anissue by the first court, and non-advertence tothe judicial precedents by the first courtwhile deciding an issue and the need to takeadditional evidence, should not always becounted in favour of making an order of remand.These lacunae, if in fact they are present, canbe rectified by the appellate Court itself,unless there are very compelling circumstancesto make an order of remand. An order of remandshould not be taken to be matter of course onthe above grounds. The power of remand shouldbe sparingly exercised. There should be alwaysendeavour to dispose of the case by theappellate Court itself, when the commissionsand omissions made by the first court could becorrected by the appellate Court."13.In the decision reported in (2006) 4 MLJ 1842 (SC)(Hameed (D) by LRs. and others v. Kummottummal Kunhi P.P.Amma (D)by LRs. and others), the Supreme Court considered the power ofremand by the appellate Courts and in paragraph 6 held as follows:"... while remitting the matter, the HighCourt has not indicated as to what question offacts and law are required to be assessed andthe circumstances upon which the High Courtfound itself unable to decide the matter."14.In this case, the trial Court recorded a finding withregard to Exs.A-3 and A-4 and the said finding is correct or notcan very well be decided by the lower appellate Court itself. https://hcservices.ecourts.gov.in/hcservices/

15.Taking note of the said factual aspect and the abovecited decisions, I am of the view that the remand order passed bythe lower appellate Court is in violation of Order 41 Rule 23 to 29CPC. Consequently the Civil Miscellaneous Appeal is allowed. Thelower appellate Court is directed to dispose of the appeal onmerits within a period of three months from the date of receipt ofcopy of this judgment. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvrTo1.The Principal District Judge, Erode.2.The District Munsif-cum-Judicial Magistrate, Perundurai.3. The Section Officer,VR Section, High Court, Madras.+1cc to Mr.N.Manokaran,Advocate SR 54613LA (CO)km/11.9.C.M.A.(NPD)No.2083 of 2000