i). Rajendra Singh v. Lt. Governor, Andaman and Nicobar Islands and others, reported in AIR

Rev.Appl. No.95 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASReserved on: 06.06.2024Pronounced on: 14.06.2024CORAMTHE HONOURABLE MR. JUSTICE P.B.BALAJIReview Application No.95 of 2024andCMP. Nos.9875 & 9876 of 2024G.Natarajan...ApplicantVs.1.Sakunthala2.D.Vas3.Coimbatore City Municipal Corporation, Rep by the Commissioner, Town Hall, Coimbatore – 641 001. ...RespondentsPRAYER: Review Application filed under Order 47 Rule 1 of CPC, to review the Judgment dated 15.03.2024 made in S.A. No.25 of 2020 on the file of this Court.For Applicant:Mr.K.SurendranathFor Respondents : Mr.S.Mukunth Senior Counsel for M/s.Sarvabhuman Associates for R1 R2- Died, Exparte R3- No Appearance.1/8 https://www.mhc.tn.gov.in/judis Rev.Appl. No.95 of 2024 O R D E RThe Review Application has been filed by the Applicant seeking to review the judgment dated 15.03.2024 in S.A.No.25 of 2020. 2. The main grounds for Review are that by remitting the matter to the First Appellate Court, partly allowing the Second Appeal, I have foreclosed the right of the Appellant with regard to the plea of res judicata.3. I have heard Mr. K.Surendranath, learned counsel for the Review Applicant and Mr. S.Mukunth, learned Senior counsel appearing for the first respondent.4. The learned counsel for the Review Applicant, Mr. K.Surendranath would submit that having found that the judgment of the First Appellate Court suffers for want of following the mandate under Order 41 Rule 31 of the Code of Civil Procedure, 1908, the entire issue should have been left open to be agitated before the First Appellate Court. The counsel would also contend that before the Lower Appellate Court, the applicant has specifically raised a plea that a suit in O.S.No.580 of 1995 is barred by principles of res judicata and therefore, in view of the matter being remanded, the Appellate 2/8 https://www.mhc.tn.gov.in/judis Rev.Appl. No.95 of 2024Court should also hear the parties on the issue of res judicata.5. The learned counsel for the review applicant would also place reliance on the following decisions:5(i). Rajendra Singh vs Lt. Governor, Andaman and Nicobar Islands and others, reported in AIR 2006 SCC 75, for the proposition regarding power of the Court reviewing its own earlier order.5(ii). Mohd. Akram Ansari vs Chief Election Officers and Others, reported in (2008) 2 SCC 95, for the proposition that there is a presumption in law that a judge deals with all points which have been pressed before him and when certain points were in fact pressed but not dealt with in the impugned judgment, it is open to the court to pass appropriate orders including an order of review.5(iii). Madhukar and Others vs Sangram and Others, reported in (2001) 4 SCC 756, for the proposition that First Appeal is a valuable right and the parties have a right to be heard not only on questions of law, but also on facts and the judgment in the First Appeal should address all issues of law and fact and decide it by giving reasons in support of the findings.5(iv). H.K.N. Swami vs Irshad Basith (Dead) by Lrs, reported in 3/8 https://www.mhc.tn.gov.in/judis Rev.Appl. No.95 of 2024(2005) 10 SCC 243, for the proposition regarding hearing of a First Appeal.5(v). B.V. Nagesh and Another vs H.V. Sreenivasa Murthy, reported in (2010) 13 SCC 530, for the proposition regarding hearing of a First Appeal.5(vi). Gogula Gurumurthy and Others vs Kurimeti Ayyappa, reported in (1975) 4 SCC 458, for the proposition that parties cannot be barred from arguing the whole appeal after the findings are received from the Court of first instance, when the findings is called for on the basis of certain issues framed by the Appellate Court and the appeal is not disposed off either in whole or in part.5(vii). Sri Gangai Vinayagar Temple and Another vs Meenakshi Ammal and Another, reported in (2015) 3 SCC 624, for the proposition that the suit is not limited to the Court of first instance or Trial Court but encompasses within its domain proceedings before the Appellate Courts and the issue of res judicata being relevant and to be decided.5(viii). Hero Vinoth vs Seshammal reported in (2006) 5 SCC 545, for the proposition that the High Court has the power to hear the appeal on a substantial point of law, though not formulated by it, to ensure that no injustice is done to the litigant.6. Per contra, learned Senior Counsel Mr. S.Mukunth, would submit 4/8 https://www.mhc.tn.gov.in/judis Rev.Appl. No.95 of 2024that there is no error apparent on the face of the judgment in the Second Appeal. Insofar as the question of res judicata, he would state that the issue was never raised before the Trial Court and was taken only for the first time in the First Appeal and therefore, the same did not require consideration especially when the matter has been remitted back to the First Appellate Court, only for ascertaining the correct lay of the properties and its measurements etc.7. I have carefully considered the rival submissions advanced by the learned counsel on either side.8. As contended by the learned counsel of the review applicant, the Second Appeal has been allowed in part and the matter has been remitted back to the First Appellate Court. This Court has not addressed the issue of res judicata and has remitted the matter on other grounds. The appellant’s right to canvass the plea of res judicata cannot be shut out. As already referred above, the Courts have consistently held that in such instances of remand, especially the First Appellate Court, being a final Court of fact, the parties should be given liberty or opportunity to canvass all their contentions.5/8 https://www.mhc.tn.gov.in/judis Rev.Appl. No.95 of 20249. The learned Senior Counsel for the respondent, Mr. S.Mukunth, would submit that the plea of res judicata was not taken at the first instance, and admittedly it was raised as a ground before the First Appellate Court and the matter is being remitted to the First Appellate Court, it would be just and proper that this issue is also considered along with the main issue for which the matter has been remitted to the First Appellate Court.10. Having given a finding that the First Appellate Court has not followed the mandate under Order 41 Rule 31 of the Code of Civil Procedure, 1908, apart from the exercise of appointing a Commissioner and hearing the First Appeal on merits, the appellant shall also be entitled to canvass the plea of res judicata and it shall always be open to the respondents to contend before the First Appellate Court that having not raised this issue before the Trial Court, such a ground would not be available to be canvassed before the First Appellate Court. Therefore, no prejudice would be caused to the respondents if the remand is in toto and the parties are given liberty to put forth all their contentions, though limited to the grounds raised in the Memorandum of Grounds of First Appeal as well as the Memorandum of Grounds of Second Appeal before this Court, if 6/8 https://www.mhc.tn.gov.in/judis Rev.Appl. No.95 of 2024available.11. In view of the above, the Review Application is allowed and the judgment and decree dated 15.03.2024 in S.A.No.25 of 2020 is reviewed and modified giving liberty to the appellant to canvass all other grounds raised in the First Appeal A.S.No.37 of 2015 as well as the above Second Appeal S.A.No.25 of 2020, if available at the time of final hearing of the First Appeal, after receipt of the report and site plan of the Advocate Commissioner, to be appointed by the First Appellate Court. The First Appellate Court shall decide the First Appeal on merits in accordance with law within a period of six months from the date of receipt of the copy of this judgment in the Review Application. There shall be no order as to costs.14.06.2024Index : Yes/NoSpeaking/Non-speaking orderrkpToCoimbatore City Municipal Corporation,Rep by the Commissioner, Town Hall,Coimbatore – 641 001P.B.BALAJI, J.7/8 https://www.mhc.tn.gov.in/judis Rev.Appl. No.95 of 2024rkpReview Application No.95 of 2024andCMP. Nos.9875 & 9876 of 202414.06.20248/8

Rev.Appl. No.95 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASReserved on: 06.06.2024Pronounced on: 14.06.2024CORAMTHE HONOURABLE MR. JUSTICE P.B.BALAJIReview Application No.95 of 2024andCMP. Nos.9875 & 9876 of 2024G.Natarajan...ApplicantVs.1.Sakunthala2.D.Vas3.Coimbatore City Municipal Corporation, Rep by the Commissioner, Town Hall, Coimbatore – 641 001. ...RespondentsPRAYER: Review Application filed under Order 47 Rule 1 of CPC, to review the Judgment dated 15.03.2024 made in S.A. No.25 of 2020 on the file of this Court.For Applicant:Mr.K.SurendranathFor Respondents : Mr.S.Mukunth Senior Counsel for M/s.Sarvabhuman Associates for R1 R2- Died, Exparte R3- No Appearance.1/8 https://www.mhc.tn.gov.in/judis Rev.Appl. No.95 of 2024 O R D E RThe Review Application has been filed by the Applicant seeking to review the judgment dated 15.03.2024 in S.A.No.25 of 2020. 2. The main grounds for Review are that by remitting the matter to the First Appellate Court, partly allowing the Second Appeal, I have foreclosed the right of the Appellant with regard to the plea of res judicata.3. I have heard Mr. K.Surendranath, learned counsel for the Review Applicant and Mr. S.Mukunth, learned Senior counsel appearing for the first respondent.4. The learned counsel for the Review Applicant, Mr. K.Surendranath would submit that having found that the judgment of the First Appellate Court suffers for want of following the mandate under Order 41 Rule 31 of the Code of Civil Procedure, 1908, the entire issue should have been left open to be agitated before the First Appellate Court. The counsel would also contend that before the Lower Appellate Court, the applicant has specifically raised a plea that a suit in O.S.No.580 of 1995 is barred by principles of res judicata and therefore, in view of the matter being remanded, the Appellate 2/8 https://www.mhc.tn.gov.in/judis Rev.Appl. No.95 of 2024Court should also hear the parties on the issue of res judicata.5. The learned counsel for the review applicant would also place reliance on the following decisions:5(i). Rajendra Singh vs Lt. Governor, Andaman and Nicobar Islands and others, reported in AIR 2006 SCC 75, for the proposition regarding power of the Court reviewing its own earlier order.5(ii). Mohd. Akram Ansari vs Chief Election Officers and Others, reported in (2008) 2 SCC 95, for the proposition that there is a presumption in law that a judge deals with all points which have been pressed before him and when certain points were in fact pressed but not dealt with in the impugned judgment, it is open to the court to pass appropriate orders including an order of review.5(iii). Madhukar and Others vs Sangram and Others, reported in (2001) 4 SCC 756, for the proposition that First Appeal is a valuable right and the parties have a right to be heard not only on questions of law, but also on facts and the judgment in the First Appeal should address all issues of law and fact and decide it by giving reasons in support of the findings.5(iv). H.K.N. Swami vs Irshad Basith (Dead) by Lrs, reported in 3/8 https://www.mhc.tn.gov.in/judis Rev.Appl. No.95 of 2024(2005) 10 SCC 243, for the proposition regarding hearing of a First Appeal.5(v). B.V. Nagesh and Another vs H.V. Sreenivasa Murthy, reported in (2010) 13 SCC 530, for the proposition regarding hearing of a First Appeal.5(vi). Gogula Gurumurthy and Others vs Kurimeti Ayyappa, reported in (1975) 4 SCC 458, for the proposition that parties cannot be barred from arguing the whole appeal after the findings are received from the Court of first instance, when the findings is called for on the basis of certain issues framed by the Appellate Court and the appeal is not disposed off either in whole or in part.5(vii). Sri Gangai Vinayagar Temple and Another vs Meenakshi Ammal and Another, reported in (2015) 3 SCC 624, for the proposition that the suit is not limited to the Court of first instance or Trial Court but encompasses within its domain proceedings before the Appellate Courts and the issue of res judicata being relevant and to be decided.5(viii). Hero Vinoth vs Seshammal reported in (2006) 5 SCC 545, for the proposition that the High Court has the power to hear the appeal on a substantial point of law, though not formulated by it, to ensure that no injustice is done to the litigant.6. Per contra, learned Senior Counsel Mr. S.Mukunth, would submit 4/8 https://www.mhc.tn.gov.in/judis Rev.Appl. No.95 of 2024that there is no error apparent on the face of the judgment in the Second Appeal. Insofar as the question of res judicata, he would state that the issue was never raised before the Trial Court and was taken only for the first time in the First Appeal and therefore, the same did not require consideration especially when the matter has been remitted back to the First Appellate Court, only for ascertaining the correct lay of the properties and its measurements etc.7. I have carefully considered the rival submissions advanced by the learned counsel on either side.8. As contended by the learned counsel of the review applicant, the Second Appeal has been allowed in part and the matter has been remitted back to the First Appellate Court. This Court has not addressed the issue of res judicata and has remitted the matter on other grounds. The appellant’s right to canvass the plea of res judicata cannot be shut out. As already referred above, the Courts have consistently held that in such instances of remand, especially the First Appellate Court, being a final Court of fact, the parties should be given liberty or opportunity to canvass all their contentions.5/8 https://www.mhc.tn.gov.in/judis Rev.Appl. No.95 of 20249. The learned Senior Counsel for the respondent, Mr. S.Mukunth, would submit that the plea of res judicata was not taken at the first instance, and admittedly it was raised as a ground before the First Appellate Court and the matter is being remitted to the First Appellate Court, it would be just and proper that this issue is also considered along with the main issue for which the matter has been remitted to the First Appellate Court.10. Having given a finding that the First Appellate Court has not followed the mandate under Order 41 Rule 31 of the Code of Civil Procedure, 1908, apart from the exercise of appointing a Commissioner and hearing the First Appeal on merits, the appellant shall also be entitled to canvass the plea of res judicata and it shall always be open to the respondents to contend before the First Appellate Court that having not raised this issue before the Trial Court, such a ground would not be available to be canvassed before the First Appellate Court. Therefore, no prejudice would be caused to the respondents if the remand is in toto and the parties are given liberty to put forth all their contentions, though limited to the grounds raised in the Memorandum of Grounds of First Appeal as well as the Memorandum of Grounds of Second Appeal before this Court, if 6/8 https://www.mhc.tn.gov.in/judis Rev.Appl. No.95 of 2024available.11. In view of the above, the Review Application is allowed and the judgment and decree dated 15.03.2024 in S.A.No.25 of 2020 is reviewed and modified giving liberty to the appellant to canvass all other grounds raised in the First Appeal A.S.No.37 of 2015 as well as the above Second Appeal S.A.No.25 of 2020, if available at the time of final hearing of the First Appeal, after receipt of the report and site plan of the Advocate Commissioner, to be appointed by the First Appellate Court. The First Appellate Court shall decide the First Appeal on merits in accordance with law within a period of six months from the date of receipt of the copy of this judgment in the Review Application. There shall be no order as to costs.14.06.2024Index : Yes/NoSpeaking/Non-speaking orderrkpToCoimbatore City Municipal Corporation,Rep by the Commissioner, Town Hall,Coimbatore – 641 001P.B.BALAJI, J.7/8 https://www.mhc.tn.gov.in/judis Rev.Appl. No.95 of 2024rkpReview Application No.95 of 2024andCMP. Nos.9875 & 9876 of 202414.06.20248/8