Ganesa Achari v. Sagunthala Ammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.01.2010CORAMTHE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.M.A.No.607 of 2004andC.M.P.No.3079 of 2004 Ganesa Achari ... Appellant/ Defendant vs. Sagunthala Ammal ... Respondent/ Plaintiff Civil Miscellaneous Appeal is filed under order 43 Rule 1(u)of CPC against the Judgment and Decree of the learned AdditionalSubordinate Judge of Chengalpattu dated 29.08.2003 in A.S.No.54 of2002 reversing the Judgment and Decree of the learned DistrictMunsif of Chengalpattu dated 11.12.2001 in O.S.No.663 of 1993. For appellant : Mr.V.NicholasFor respondent : Mr.J.Srinivasa MohanJUDGMENTThe appeal has been filed against the orders of remand passed by the Appellate Court, setting aside the Decree of dismissal for fresh disposal by the trail Court. The point for consideration by this Court is very limited namely, whether the Appellate Court is justified in remanding the matter to the Trial Court?2. Appellant is the defendant before the trial Court and the respondent is the plaintiff. The respondent herein filed suit for declaration of title and for delivery of possession of by schedule properties and for damages. The said suit was contested by the appellant herein. After elaborate trial, the trial Court dismissed the suit by a Decree and Judgment dated 11.12.2001. Against the said Judgment the respondent preferred in A.S.No.54/2002. In the said Appeal respondent took out two I.A's in I.A.No.129 of 2003 andI.A.No.130 of 2003. I.A.No.129 of 2003 was filed under Order 41rule 21 read with Section 151 of C.P.C. to seek permission to letin further oral evidence in the Appeal. I.A.No.130 of 2003 was filed under Order 41 Rule 27 and read with Section 151 of C.P.C. to receive the additional documentary evidence. https://hcservices.ecourts.gov.in/hcservices/

While dealing with the said applications the AppellateCourt went into the details with regard to the boundary of the property and the contradiction between the Advocate Commissioner'sReport and Ex.A.1 patta and surveyors report. However, the Appellate Court without giving any finding with regard to as to how the trial Court Decree and Judgment is not sustainable, merely based on the contradiction regarding boundary remanded the matteras follows:- "18. In this connection the suit property belonged to the Appellant's husband ViswanathaAchari. She being lone of the several heirs cannot filed suit for declaration of title without joining the other heirs of Viswanatha Achari viz sons anddaughters of him thus giving room for non-joinder of necessary parties. Merely the evidence of P.W.2 andP.W.3 son and daughter were examined to state that they have no objection for filed the suit exclusively by the plaintiff will not prove the legal defect in the framing and filing of the suit. So the appellant alone filing without joining other heirs of Viswanatha Achari is not maintainable. Suit suffers for lit is non-joinder for necessary party to the suit will have impact this case. In the above circumstances I hold that Appeal has to be allowed while remanding the matter to the Trail Court with adirection for fresh disposal as early as possible no costs.19. In the result, the Appeal is allowed, while setting aside the Decree and Judgment of the TrailCourt and the suit is remanded back to the TrailCourt for fresh disposal according to law and the Trail Court is directed to dispose the case as early as possible. Both parties are directed to appear before the Trail Court on 26.09.2003. No costs. "

Aggrieved by the remand order, the defendant filed the appeal before this Court. The learned counsel for the appellant submitted that the suit filed by the respondent herein was dismissed on appreciation of pleadings and evidence and the matter was taken to Appellate Court by the respondent herein. Withoutgiving any findings as to how the findings reached by the trialCourt are wrong the Appellate Court simply remanded the matter andit is against law. Secondly, the learned counsel submitted that the applications filed by the respondents without any discussion, were allowed I.A.No.129 of 2003 itself was for adducing oral evidence and I.A.No.130 of 2003 was for marking of additional documents. Without giving an opportunity to the appellant herein the first https://hcservices.ecourts.gov.in/hcservices/ Appellate Court without giving any reasons allowed the applications and therefore the said orders liable to be set aside.

The learned counsel relied upon two Judgments of this Courtin Poolar Vs. Gomathi Moopanar and 2 Others reported in 1996 (II)CTC 539. In that case, the Appellate Court remanded the suit for fresh trial pointing out some defects in the plaintiff's case. Without giving any finding as to how trial Court findings are not sustainable remanded the matter. Therefore, this Court held that suit cannot be remanded to fill up the lacuna and Appellate Courtshould make endeavour to dispose of the case by itself and Order of the Appellate Court remanding the case was set aside and further direction was given to the Appellate Court to dispose of the appeal on merits. In another case this Court in Rathnasamy Mudaliar Vs.Rasu reported in 2000 (II) MLJ 89 held that the Appellate Courtmust come to the conclusion on the pleading or on the evidence placed before it or on law that the Judgment and the Decree of trial Court was erroneous therefore liable to be reversed or setaside and there must be at least a finding that there has been misunderstanding of the pleadings. In the absence of such finding there can be no reversal or setting aside of the Judgment and the Decree of trial Court and the Consequent remand. Relying upon those Judgments the learned counsel submitted that in the instant case also no such finding was given by the First Appellate Courtand therefore submitted the remand itself is wrong.

On the other hand Mr.J.Srinivasa Mohan, learned counsel for the respondent/Plaintiff submitted that reasons for remand were given by the First Appellate Court in Paragraphs 15,16,17 and 18 of the Judgment of the Appellate Court and that there are contradictions between the boundaries of the suit property as contained in Advocate Commissioner report and the patta and that therefore, the Appellate Court thought it fit to remand the matter for fresh disposal. The learned counsel further submitted that in paragraph 18 of the Judgment that the Appellate Court gave afinding that the suit suffered for non-joinder of necessary party and therefore the remand order was passed rightly. The learned counsel relied upon the Judgment of the Hon'able Supreme Court in Narayanan Vs. Kumaran and others reported in 2004 (4) SCC 26 to submit that even for filing appeal against the remand order, there should be a question of law as adopted in second appeal.

A perusal of the Judgment of Appellate Court would reveal that there is no clear finding as to how the first Appellate Courtdisagreed with the findings of the trial Court. As already held by this Court there should be a finding that the decision of the trialCourt is liable to be reversed before remanding the suit. In this case no where in the Judgment, the first Appellate Court rendered any finding as stated above and that itself is fatal to the remand order.8. Secondly, two applications were filed one was for adducing oral evidence and other one was to mark new document. Without even giving any reasons the first Appellate Court mechanically allowed those applications as if it was exparte order, especially, when the matter was contested by the appellant by filing counter. Thatitself would go to show that the Appellate Court had not applied its mind and decided the matter. If the applications were to beallowed, the Appellate Court should not have remanded the matter on https://hcservices.ecourts.gov.in/hcservices/ the other hand it should have allowed the respondent herein to adduce evidence and mark the document by giving an opportunity to the appellant to cross examine the witnesses. Without doing that, the additional document was received and marked as Ex.A.1. Theapproach of the Appellate Court is wrong as contrary to the procedure and law and therefore is liable to be set aside.

With regard to the Judgment referred to by the learned counsel for the respondent that question of law has to be framed, if an appeal has been filed against the order of remand under Order43 Rule 1 Clause (u). In the said case decided by the Hon'bleSupreme Court, the remand order was challenged before the HighCourt. High Court without deciding the scope of the order of demand further went into the details on merits and confirmed Decreeof trial Court setting aside the Judgment of the District Court. Therefore, the Hon'ble Supreme Court held that instead of deciding the remand order the High Court went into the merits of the case and that cannot be done without framing the question of law. Inthis case no adjudication was done by the Appellate Court and it only remanded the matter, without giving reasons. Therefore, the objections raised by the learned counsel by citing the Hon'bleSupreme Court Judgment reported in 2004 (4) SCC 26 is not sustainable as the facts are different.

When the Appellate Court chose to allow the application for oral evidence as well as the documentary evidence, it should have taken the task of recording the evidence and decide the matter under order 41 Rule 24, where evidence on record is sufficient, the Appellate Court may determine the case finally. Under order 41Rule 25 where Appellate Court is entitled to frame issues and refer them for trial to Court whose Decree Appealed from. The AppellateCourt is empowered under Order 41 Rule 27 to direct production of additional evidence and the mode of taking additional evidence is given under order 41 Rule 28. When such is the position, the Appellate Court mechanically remand the matter for fresh disposal without giving any finding as to how the findings of the trialCourt were illegal. In the absence of any such finding the order of remand cannot be sustained and therefore it is set aside.

However, taking into consideration of the fact that the suit was filed in the year 2001, the Appellate Court is directed to restore the Appeal Suit No.54 of 2002 to its file and dispose of the same on merits within six months from the date of receipt of acopy of this order. The parties are at liberty to adduce fresh evidence before the Appellate Court if they choose to adduce, including filing fresh Advocate Commissioner Application. https://hcservices.ecourts.gov.in/hcservices/