Ramasamy v. Ramachandran

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11.02.2009CORAMTHE HON'BLE Mr. JUSTICE S.PALANIVELUC.M.A.Nos.647 and 648 of 2002Ramasamy ...Appellant in both the CMAsVs.Ramachandran ...Respondent in both the CMAs These civil miscellaneous appeals have been filed under OrderXLIII Rule 1(u) of Civil Procedure Code to set aside the judgment anddecree dated 30.11.2001 made in A.S.No.42 of 2001 and A.S.No.40 of2001 of the learned Additional Subordinate Judge, Myladuthurai insetting aside the judgment and decree made in O.S.No.98 of 1998 andO.S.No.217/1998 on the file of Court of District Munsif, Sirkalidated 15.03.2001.For Appellant: Mr.A.MuthukumarFor Respondent: Mr.S.RajendranCOMMON JUDGMENTThe appellant is respondent in A.S.No.42/2001 and 40/2001 on thefile of the Additional Subordinate Judge, Mayiladuthurai. Both theappeals arose from the judgments passed in O.S.No.98/98 and 217/98 onthe file of the District Munsif Court, Sirkali. The Appellant isdefendant in O.S.No.62 of 2001 and plaintiff in O.S.No.98/98. Therespondent is plaintiff in O.S.No.62/01 and he is defendant inO.S.No.98/98.2. In O.S.No.217/1998, reliefs of recovery of possession andfurther removal of roofed superstructure and also for mesne profitshave been prayed for. While O.S.No.98/98 was filed for permanentinjunction. The learned District Munsif passed a common judgment infavour of this appellant and the respondent preferred two appeals inA.S.No.40/2001 and 42/2001 on the file of the learned AdditionalSubordinate Judge, Mayiladuthurai. https://hcservices.ecourts.gov.in/hcservices/

3. The respondent filed a petition in I.A.No.62/2001 under OrderXXVI Rule 9 of Civil Procedure Code for appointment of an Advocate-Commissioner to inspect the suit properties and to locate the samewith the assistance of a qualified Surveyor. The learned AdditionalSubordinate Judge, heard both the parties in both appeals and hasrendered a common judgment remanding both the mattes to the Trialcourt to appoint an Advocate-Commissioner to inspect the propertywith the assistance of a qualified Surveyor, to file a report and toproceed with further trial affording opportunities to both parties tolet in evidence, both oral and documentary and to render judgment.The said remand orders are being challenged before this court inthese civil miscellaneous appeals.4. The learned Additional Subordinate Judge, after extractingthe contentions of both parties and the respective pleadings of bothsides as well, recorded a finding that it is not debatable that theextent of the suit property is 2½ cents and the same is comprised inSurvey No.280/2 which is sprawling to an extent of 2 acres and 2cents, that in the said survey number several persons have put uphouses and are residing, that the respondent (appellant herein) hasnot produced earlier documents of title and Ex.A1 to A5 would showthat the plaintiff had been in possession even ten years anterior to1997, that judgment in O.S.No.13/1995, (Ex.B3) was followed byexecution for delivery in E.P.No.40/1998 and on the strength ofEx.B4-Delivery warrant, the defendant took delivery of the propertyand as per Ex.B2, it was argued that there is no connection betweenthe property in Ex.B2 and the present suit property and on thestrength of Ex.B2 to 4, the court below has opined that it could notbe decided whether the property belongs to the defendant, that it isto be observed that both the properties are different and that theproperty referred in Ex.B2 is relatable to the suit property.5. It is also observed by the Appellate court that if 2½ centsis located in Survey No.280/2, there is a possibility of grantingrelief to the appellant (respondent herein) and that in the interestof justice, the matter has to be remitted back to the Trial court fora fresh trial as to the points which would be placed before the courtby the Commissioner's report. The conclusive portion of the judgmentof the Appellate Court is as follows:-" vdnt ePjpapd; eyd; Fwpj;J cz;ikj;jd;ikiaf; fhQqk;bghUl;Lk; nky;KiwaPl;lhsh; jug;gpy; Kd;dplg;gl;l nky;KiwaPL40-2001y; jhf;fy; bra;ag;gl;l t/tp/62/2001 mDkjpg;gjw;F Vw;g[ilakw;Wk; nghJkhd fhuzk; ,Ug;gjhfnt bjd;gLfpwJ/ mjd;bjhlh;r;rpahf tHf;fwp"h; Mizah; epakdk; bra;ag;gl;L rh;ntah;cjtpa[ld; jhth ,lj;ijg; ghh;itapl;L. mwpf;if kw;Wk; tiuglk;Mfpatw;iw jhf;fy; bra;a[k; gl;rj;jpy; mJ bjhlh;ghf ,Ujug;gpdUf;Fk; tha;bkhHp kw;Wk; TLjy; Mtz rhl;rpa';fis Kd;itf;f thag;g[ mspj;J g[jpa jPh;g;g[ tH';fpl ntz;oaJmtrpakhfpwJ/ nkw;brhd;d fhuz';fspd; mog;gilapy; , https://hcservices.ecourts.gov.in/hcservices/ k;nky;KiwaPLfs; mDkjpf;fg;gl;L. fPHik ePjpkd;wj;jpd; jPh;g;g[k;.jPh;g;ghida[k; uj;J bra;ag;gl;L. kPz;Lk; tprhuizf;fhf mry;tHf;Ffis fPHik ePjpkd;wj;jpw;F kPl;lDg;g[if bra;aj;jPh;khdpf;fg;gLfpwJ/" 6. The learned counsel for the appellant Mr.A.Muthukumar wouldargue vehemently that the order of remand by the appellate courtcould not be justified on any account, that the appellate court hasnot set aside the finding of the trial court, that this petitionerwas entitled to the property, that no reasons were adduced forappointment of an Advocate-Commissioner and the same is notmaintainable at the appellate stage, that no commission can be issuedto gather evidence at the instance of the parties and that the titleand possession of the parties to a property cannot be decided by anAdvocate-Commissioner.7. Per contra, the learned counsel for the respondentMr.S.Rajendran would submit that inasmuch as the Appellate Court hasfurnished sufficient finding in the judgment and the reasons assignedthereon are adequate for remanding the matter as per the provisionsof Code of Civil Procedure and hence there is no wrong in the orderimpugned.8. This court, need not go into the claims of the parties andthe merits of the case. Suffice it to decide whether the AppellateCourt is justified in remanding the matters to the Trial Court forfurther trial. In order to have a thorough glance of the matter, itis profitable to extract the relevant provision in Civil ProcedureCode.Order XLI Rule 2323. Remand of case by Appellate Court — Where thecourt from whose decree an appeal is preferred has disposedof the suit upon a preliminary point and the decree isreversed in appeal, the Appellate Court may, if it thinksfit, by order remand the case, and may further direct whatissue or issues shall be tried in the case so remanded, andshall send a copy of its judgment and order to the Courtfrom whose decree the appeal is preferred, with directionsto readmit the suit under its original number in theregister of civil suits, and proceed to determine the suit;and the evidence (if any) recorded during the originaltrial shall, subject to all just exceptions, be evidenceduring the trial after remand.23A. Remand in other cases — Where the Court fromwhose decree an appeal is preferred has disposed of thecase otherwise than on a preliminary point, and the decreeis reversed in appeal and a re-trial is considered https://hcservices.ecourts.gov.in/hcservices/ necessary, the Appellate Court shall have the same powersas it has under Rule 23.9. If the Appellate Court is of the view that the Trial courtdecided the case otherwise than a preliminary report and the decreeis reversed in appeal a re-trial is inevitable. As per law settledby the Hon'ble Supreme Court, the powers of the courts are restrictedto direct remand of the matters to the Trial court. Before passingthe order of remand, the Appellate Court has to ensure that thecircumstances set out in Rules 23 and 23A of Order XLI of the CivilProcedure Code are satisfied. If the purpose of remand outside thescope of these provisions, is discerned, then the Appellate Courtshall avoid remand. The sections have been incorporated in the CivilProcedure Code, to restrict the power of the Appellate courts toremand several matters in which the appellate court finds doubts withregard to certain points which in fact could be decided by theAppellate Court itself on the available materials. To put itdifferently, the object of introduction of these provisions is tocircumvent the powers of the Appellate Courts to take liberal view inremanding the matters to the Trial court, where retrial is notwarranted, which would lead to elongation of the trial proceedingsindefinitely.10. The learned counsel for the appellant would rely upon adecision of a division bench of this court in 2002(3) MLJ 234 inJayaraman v. Kumaran and others, in which, this court, afterundertaking a elaborate discussion on the subject, after referring tovarious decisions of Supreme Court and this court had finally heldthat if the scope of remand is out of the parameters adumbrated underRules 23 and 23A of Order XLI, then the remand has to bediscountenanced. In the judgment, a decision of the Supreme Court in2002 SC 771 in P.Purushottam Reddy v. M/s.Pratip Steels Limited hasalso been referred and followed. In the said decision, the ApexCourt has settled law as follows:-" In cases where additional evidence is required to betaken in the event at any one of the clauses of Sub-rule(1) of Rule 27 being attracted, such additional evidence,oral or documentary, is allowed to be produced eitherbefore the appellate court itself or by directing any Courtsubordinate to the appellate court to receive such evidenceand sent it to the appellate court. In 1976, Rule 23-A hasbeen inserted in O.41 which provides for a remand by anappellate court hearing an appeal against a decree if, (i)the trial Court disposed of the case otherwise than on apreliminary point, and (ii) the decree is reversed inappeal and a retrial is considered necessary. On twinconditions being satisfied, the appellate court can https://hcservices.ecourts.gov.in/hcservices/ exercise the same power of remand under Rule 23A as it isunder Rule 23. After the amendment all the cases ofwholesale remand are covered by Rules 23 and 23-A. In viewof the express provisions of these rules, the High Courtcannot have recourse to its inherent powers to make aremand because, as held in Mahendra v. Sushila, A.I.R. 1965S.C. 365 at 399, it is well settled that inherent powerscan be availed ex debito justitiae only in the absence ofexpress provisions in the Code. It is only in exceptionalcases where the court may now exercise the power of remanddehors the Rule 23 and 23-A. To wit, the superior Court,if it finds that the judgment under appeal has not disposedof the case satisfactorily in the manner required by O.20,Rule 3 or O.11, Rule 31 of the C.P.C and hence it is nojudgment in the eye of law it may set aside the same andsend the matter back to re-writing the judgment so as toprotect valuable rights of the parties. An appellate Courtshould be circumspect in ordering a remand when the case isnot covered either by Rule 23 or Rule 23-A or Rule 25 ofthe C.P.C. An unwarranted order of remand gives thelitigation an undeserved lease of life and, therefore, mustbe avoided."The above said legal principle throws much light on thissubject. The order of remand cannot be made on the request of theparties nor on flimsy grounds but strictly be within the ambit of therules.11. The learned counsel for the appellant also garnered supportfrom a decision of this court in 2000(3) MLJ 89 in RathnasamyMudaliar and others V. Rasu in which it is observed as follows:-" From a conspectus of the various decisions referredabove the following guidelines emerge. The appellate courtmust come to the conclusion on the pleading or on theevidence placed before it or on law that the judgment andthe decree of the trial court are erroneous and thereforeliable to be reversed or set aside. There must at least bea finding that there has been a misunderstanding of thepleadings of the parties or denial of an opportunity toplace the materials they wanted to place before the Courtin support of their respective claims. In the absence ofsuch a finding there can be no reversal or setting aside ofthe judgment and the decree of the trial court andconsequent remand." https://hcservices.ecourts.gov.in/hcservices/

12. Following the decisions laid down by the Apex court, it hasto be held that the order of remand could be justified if the purposefor which it would come within the purview of Rule 23, 23-A or 25 ofCPC.13. Adverting to the facts of present case, the learnedAdditional Subordinate Judge, Mayiladuthurai has given adequatefindings in his judgment as to the rights of the parties to beadjudicated upon. In his opinion, the lie of the property has notbeen established by any of the parties and only if the same islocated in the entire extent of 2 acres and 2 cents comprised inSurvey No.280/2, then the entitlement of a particular party could befound. There is also a clear finding that it transpires that theproperties found in the plaint schedule and Ex.B2 are different. Thesuit property, a tiny portion of 2½ cents in a larger extent of 2acres and 2 cents, has to be located and identified so as to enablethe court to approve the oral evidence on record. If the property isnot identified, the courts below could not make a final and completeadjudication of the case, because, each of the party has filed aseparate suit for different reliefs and it is incumbent upon each ofthem independently to prove their title and possession in theproperty. If only one suit is available, the court may come out afinding that the plaintiff does not prove his title and hence he isnot entitled for relief. The defendant in one suit is plaintiff inanother suit. Hence as far as the facts go as above, it isinevitable to have ample materials and evidence before the court todecide the matter.14. Coming to the import of the provisions in Rules 23 and 23-Aof Order XLI of CPC, a clear finding has to be furnished by theAppellate Court for remanding matter. As per the amendment to Rule23 of Order XLI of CPC by Madras High Court, if the Appellate courtconsiders it necessary in the interest of justice to remand the case,it can be done and as per Rule 23A, if the court considers a re-trialis necessary, the remand could be ordered. Bearing in mind the abovesaid statutory requirements, while the present matter is subjected toscanning, it is to be observed that the Appellate Court has expressedits view unambiguously that there are sufficient grounds for re-trialand the remand could be in the interest of justice.15. Since this court reaches a conclusion that the AppellateCourt's order of remand could be justified, which has satisfied therequirements envisaged in Rules 23 and 23A of Order XLI, the orderchallenged need not be disturbed and there is no legal infirmity inthe same, it deserves to be confirmed and it is accordingly confirmed.16. In fine, both the civil miscellaneous appeals are dismissedwithout cost. The Trial court shall decide the matter as per thedirection of the Appellate Court, without getting influenced by any https://hcservices.ecourts.gov.in/hcservices/ of the observations already recorded by the Trial Court and theAppellate Court.sd/-Asst.Registrar/true copy/Sub Asst.Registrarasr/To1. The Additional Subordinate Judge, Mayiladuthurai.2. The District Munsif, Sirkali.+ 1 c.c. to M/s. A. Muthukumar, Advocate. S.R.No.5671. JUDGMENT INC.M.A.Nos.647 & 648 of 2002MBS (CO)GSK 09.03.2009.