Madras High Court
Kannammal, Wife Of Arumugam vs Kuppanna Gounder on 29 August, 1996
Equivalent citations: (1996)2MLJ550
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT AR. Lakshmanan, J.
1. The respondent filed O.S.No. 135 of 1985 against the appellant herein on the file of the Sub-Court, Udumalpet for a declaration and possession of about 0.52 cents of land alleged to have been encroached by the late husband of the appellant and subsequently said to be in her possession. The appellant had further sought past mesne profits of Rs. 15,000 and future mesne profits at the rate of Rs. 5,000/- per year. The suit was dismissed with costs. Aggrieved against the same, the respondent filed an appeal In A.S.No. 62 of 1988 on the file of the I Additional District Judge, Coimbatore against the abovesaid decree. The lower Appellate Court set aside the trial Court's decree and has remanded the matter to the trial Court with a direction to appoint a new Advocate Commissioner to measure the suit properties with the help of a surveyor and dispose of the case afresh. Aggrieved against the same, the appellant has filed the above appeal.
2. According to Mr. Santhanagopalan, learned Counsel for the appellant, the appellant's husband had acquired the properties as early as 1957 within specified boundaries and the same has been in the continuous possession and enjoyment of their lessees throughout. The respondent was given every opportunity to substantiate his case. It is contended that the trial Court after thorough consideration of the evidence adduced by the parties dismissed the suit with costs by a well considered judgment. However, the lower Appellate Court has remanded the matter to the trial Court.
3. I have gone through the entire pleadings and also the judgments of both the Courts below. The order of remand as ordered by the lower Appellate Court, is in my opinion, against the well laid principles relating to the power and jurisdiction of the Appellate Court in determining the suit for fresh disposal. The lower Appellate Court has mechanically remanded the matter to the trial Court without applying its mind as to whether the judgment and finding of the trial Court are correct or not, or whether it should be reversed or set aside on the materials available on record. The trial Court has framed the necessary issues and decided the matter on merits. The trial Court also has given a clear finding to the effect that the plea of encroachment of respondent's lands by the appellant is not true, that the well laid boundaries of the lands of the parties would prevail over the extent referred to in the documents, that the appellant has prescribed title over the lands in her possession by adverse possession, that the plaintiff has not established that the suit properties belonged to him, that the appellant her husband have been in possession of their lands from 1957 and that the suit as filed on 16.7.1985 is barred by limitation. Therefore, it is clear that even though ample and sufficient materials were available on record before the lower Appellate Court, the lower Appellate Court without looking into those materials placed before it has failed to appreciate them. It has also failed to appreciate that there were enough materials available on record for a fair and complete adjudication of the disputes between the parties and that there was no need or necessity to remand the matter once again for fresh disposal. The Appellate Court has erred in its observation that there was no need to consider the questions viz., that the plea of encroachment of respondent's lands by the appellant is true or not and whether the plea of the appellant that she has prescribed title by adverse possession over the lands in her possession and enjoyment from 1957, situate well within the laid and fixed boundaries and as such the respondent can have no reliefs as prayed for by him, merely because of the filing of the adangal extracts marked as Exs. A7 to A16 and the compromise decree, marked as Ex.A-17. Before the lower Appellate Court Exs.A-7 to A-17 were marked, which have been received as additional evidence by the lower Appellate Court. Section 107 of the Code of Civil Procedure, 1908 deals with the powers of Appellate Court. It reads as follows:
107. Powers of Appellate Court: (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial; and
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein." Therefore, the lower Appellate Court shall have the power to take additional evidence or to require such evidence to be taken. Now as the additional evidence has already been taken by the trial Court, the lower Appellate Court itself can consider the entire evidence and materials available on record and dispose of the case on merits. The powers of the Appellate Court to pass an order of remand and to send the case back for trial is well settled. Under Order 41, Rule 23, C.P.C., the Appellate Court has got power to remand a suit for fresh disposal (a) if the suit has been disposed of on a preliminary point or (b) if the appellate Court considers that it is necessary in the interests of justice that the matter should be disposed of afresh by the trial Court. It has been repeatedly pointed out by this Court that this power of remand ought not to be lightly exercised by the Appellate Court, where it has failed to discharge its own duty of disposing of the appeal on merits. The case on hand is one such.
4. It is only in exceptional cases, where the judgment I of the trial Court is wholly unintelligible or incomprehensible that the appellate Court can remand the suit for a fresh trial. In the present case, the lower Appellate Court has acted clearly without jurisdiction and has mechanically remanded the matter to the trial Court without applying its mind as to whether the judgment and the findings of the trial Court are correct and if not whether it should be reversed or set aside. In other words, the Appellate Court should come to the clear conclusion that the findings of the trial Court cannot be supported and must be set aside. Ends of justice require that a party litigant who had incurred expenses and undergone all the ordeal and trouble of a protracted trial in the trial Court should not be deprived of the benefit of the adjudication and be obliged to fight the case, over again for some defect or mistake in the form of expression of the trial Court.
5. The judgment of the Appellate Court is defective and erroneous on another ground. Order 41, Rule 31 of the Code of Civil Procedure stipulates that the judgment of the Appellate Court shall be in writing and shall state-
(a.) The points for determination;
(b.) the decision thereon;
(c.) the reasons for the decision; and (d.) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the judge or by the judges concurring therein....
6. The High Court amendment (Madras) to Order 41, Rule 31 reads as follows: (substitute the following as Rule 31) The judgment of the Appellate Court shall be in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall bear the date on which it is pronounced and shall be signed by the judges concurring thereon; Provided that, where the Presiding Judge is specially empowered by the High Court to pronounce his judgment by dictation to a shorthand writer in open Court the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary be signed by the Judge....
7. In this case, the lower Appellate Court has miserably failed to state the points for determination and the decisions thereon. The object of this Rule making it incumbent on the part of the lower Appellate Court to raise points for determination is to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions. Which arise for decision. The provisions of Order 41, Rule 31 of the Code of Civil Procedure are mandatory. In the instant case, the lower Appellate Court has failed to state the exact question which arises for consideration in the appeal and require determination. The lower Appellate Court has not formulated any point at all for determination. Therefore, the judgment of the lower Appellate Court has been rendered by completely overlooking the provisions of Order 41, Rule 31 of the Code of Civil Procedure. The Lower Appellate Court has rendered the judgment in a casual manner and a cavalier fashion.
8. A Division Bench of this Court in the decision reported in Visalakshmi Ammal v. Dhanalakshmi Ammal (1989)2 L.W. 414 has observed thus:
The unsatisfactory consideration of an issue by the first court and the non advertence to the judicial precedents by the first court while deciding an issue and the need to take additional evidence, should not always be counted in favour of making an order of remand. These lacuane, if in fact they are present, can be rectified by the appellate Court itself unless there are very compelling circumstances to make an order of remand. An order of remand should not be taken to be matter of course on the above grounds. The power of remand should be sparingly exercised. There should be always an endeavour to dispose of the case by the Appellate Court itself, when the commissions and omissions made by the first court could be corrected by the Appellant Court.
9. For all the foregoing reasons, the judgment and decree A.S.No. 62 of 1988 on the file of the I Additional District Judge, Coimbatore, dated 28.2.1989 are set aside and the matter is remitted back to the lower Appellate Court which is directed to dispose of the appeal afresh on merits and in accordance with law after affording opportunities to both parties to let in further evidence, if necessary, within a period of three months from the date of receipt of a copy of this order and the records from this Court.
10. This appeal shall stand allowed accordingly. However, there will be no order as to costs.