Madras High Court
R.Selvam vs N.Vasudevan on 9 October, 2018
Author: J.Nisha Banu
Bench: J.Nisha Banu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 15.09.2017
PRONOUNCED ON : 09.10.2018
Dated: 09.10.2018
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.M.A(MD)No.1001 of 2012
and
M.P(MD)No.1 of 2012
R.Selvam ...Appellant/1st respondent/1st defendant
Vs.
1.N.Vasudevan
2.N.Sridharan
3.K.N.Padmanabhan
... Respondents 1 to 3/Appellants 1 to
3/Plaintiffs 1 to 3
4.Arulmigu.Pundarikatchaperumal Thiruvellarai,
Rep. by its Executive Officer,
Sri.Renganathaswami Devasthanam,
Sri Rengam, Trichy-6.
... 4th respondent/2nd respondents/2nd defendant
5.Maruthai
6.Deivanai
7.R.Baskar
8.P.Vijaya
9.A.Maruthai
... Respondents 5 to 9/Respondents
2 to 7/defendants 3 to 7
(The respondents 5 to 9 herein were remained ex parte in the lower Courts and
hence, R.5 to 9 are given up)
PRAYER:- Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of Civil
Procedure Code against the judgment and decree of the learned II- Additional
Sub-Judge, Trichy, dated 28.03.2012, in A.S.No.120 of 2011, remanding the
suit in O.S.No.234 of 2006 on the file of the learned Principal District
Munsif cum Judicial Magistrate, Lalkudi.
!For appellant :Mr.T.S.R.Venkatramana
^For respondents 1 to 3 :Mr.N.C.Ashok kumar
For respondents 4, 5 to 9 :Mr.K.Govindarajan
:JUDGMENT
This appeal has been filed by the appellant / first defendant challenging the judgment and decree passed in A.S.No.120 of 2011, whereby and whereunder the first appellate Court, after setting aside the judgment and decree of the trial Court, remanded the suit for marking additional documents.
2. The respondents 1 to 3 herein as plaintiffs had filed the suit in O.S.No.234 of 2006 for the relief of declaration declaring that the plaintiffs and their male descendants alone should perform the Kattalais as trustees of the trust founded by Narayana Chettiar and for injunction restraining the first defendant / appellant herein from interfering with the management of the trust.
3.The case of the plaintiffs / respondents 1 to 3 is that the suit property originally belonged to the forefathers of the plaintiffs and first defendant, by name Narayanan Chettiyar, who had no male issue but had only four daughters. He had settled the suit property by way of settlement deed dated 20.03.1935 (EX.A1) in favour of his brother's son by name Kumarasamy Chettiyar for doing some ?dharmams? during the visit of ?Pundari Katcha Perumal? to Kollidam. Kumarasamy had two sons by name Thiruvengadam and Narayanan and a daughter by name Saroja. On 25.05.1976 Kumarasamy executed a registered Will mandating that his two sons and their male heirs could perform ?dharmams? in annual terms. In the year 1977, the said Kumarasamy died. Then, the said Narayanan died on 11.09.2000 leaving the plaintiffs and his two daughters as his heirs. In April, 2001, the plaintiffs performed the ?dharmams?. Thereafter, the said Thiruvengadam died on 28.10.2001 leaving the first defendant alone as his heir. As the first defendant is female, as per the Will dated 25.05.1976, the first defendant has no right to perform ?dharmams? by collecting rent from the tenants in the suit properties. But, the first defendant has been collecting the rents from some of the tenants viz., defendants 3 to 7 in the suit properties and also objecting the plaintiffs' performance. The 2nd defendant temple directed the parties to get a Court order. Hence, the plaintiffs filed the suit. Since the defendants 3 to 7 supported the first defendant by paying rents, they were also impleaded as parties in the suit.
4. According to the first defendant, there is no mention in Ex.A1 - settlement deed executed by the original owner viz., Narayanan Chettiyar that only male descendants alone should perform the ?dharmams? and therefore, Kumarasamy had no right to execute a Will to change the line of succession and hence, that Will is not valid. Her further claim was that females were also ?Varisugal? and hence, she is entitled to perform her turn of doing ?dharmams? by collecting rents from the suit properties.
5. The trial Court, after considering the oral and documentary evidence, has dismissed the suit, holding that the first defendant, though a female, had the right to perform the ?dharmams?. Challenging the said judgment and decree, the plaintiffs had filed an appeal in Appeal Suit No.120 of 2012 along with I.A.No.143 of 2012 for reception of additional documents namely, a mortgage deed dated 16.11.1985 and a Will executed by Thiruvengadam, dated 04.01.2001. The first appellate Court has allowed the appeal and set aside the judgment and decree passed by the trial Court without any specific findings and remanded the matter to the trial Court for marking of additional documents and for retrial. Aggrieved over the said findings of the first appellate Court, the first defendant has filed this Civil Miscellaneous Appeal.
6. The main contention of the learned counsel appearing for the first defendant / appellant is that the first appellate Court has got every right to permit the parties to let in evidence, enquire into the dispute in detail, appoint an advocate commissioner, if necessary, to call for the records, amend the pleadings etc., But, merely because the plaintiffs have sought to produce certain documents to prove their case, the first appellate Court has remanded the matter back to the trial court for marking of additional documents and retrial, which cannot be sustained. He would further submit that as there is no specific finding rendered by the first appellate Court that the decree and judgment passed by the trial court is improper or irregular, as required under Order 41 Rule 23A of CPC, the order of remand is vitiated. Thus, he prayed to allow this appeal and set aside the judgment and decree passed by the first appellate Court.
7. The learned counsel appearing for the respondents submitted that the first appellate Court, after carefully considering the materials available on record, has eventually remanded the matter with a direction to give opportunity to both sides to adduce fresh evidence and to mark additional documents. By no stretch of imagination, it cannot be construed that the lower appellate Court has derailed the facts and circumstances of the case. Therefore, the judgment of the first appellate Court is a well reasoned judgment and there is no flaw nor infirmity in the judgment passed by the first appellate Court. Thus, he prayed for dismissal of this Civil Miscellaneous Appeal.
8. Heard the learned counsel appearing for both sides and perused the material available on record.
9. Though very many contentions have been raised by the learned counsel appearing for both sides with regard to the merits and demerits of the case, considering the scope of this appeal, this Court is not inclined to deal with the same.
10. The only point to be decided in this appeal is whether the first appellate Court was right in remanding the matter to the trial Court for retrial by marking of additional documents, in the absence of any finding to invalidate the judgment and decree passed by the trial court?.
11. Order 41 Rule 27 C.P.C. provides the party to file additional evidence at the first and second appellate Stage. If the party to the appeal is able to satisfy the appellate Court that there is justifiable reason for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are the subject matter of the lis, the Court should allow the party to file such additional evidence, in order to do substantial justice to the parties. But, for marking of additional documents through a witness, remand is not necessary. The lower appellate Court itself can record the evidence by permitting the parties to mark the additional documents and afford an opportunity to the other side to cross-examine the witness, as the appeal is a continuation of the original proceedings. Further, if the first appellate Court comes to the conclusion that re-trial is necessary, it should give a finding that the decree and judgment of the Court below is vitiated and thereafter remand the matter. In the absence of such a finding by the first appellate Court, the order of remand passed by the first appellate Court is liable to be set aside as it is against the provisions of Order 41 Rule 23-A of CPC.
12. In this connection, this Court is inclined to refer to some of the decisions hereunder:
(a) A Division Bench of this Court in a decision reported in (2005) 2 MLJ 552 (S. Shanmugam vs. S. Sundaram and others), has held in paragraph No.12 as follows:-
"12. On a perusal of the judgment of the lower appellate Court, it is revealed that on the basis of both oral and documentary evidence available on record, the lower appellate Court came to the conclusion that the third defendant is also entitled to a share in 'A' schedule property and in the sketch of the Commissioner also when it is made clear that as to how the 'A' schedule property could be partitioned and especially when the provisions of O.41, Rules 23 to 29 of CPC are not a bar to take further evidence or to appoint a commissioner, if so necessary, and to try the appeal, as rightly pointed out by the learned counsel for the appellate, we are of the view that there is no necessity to remand the matter back to the trial court and that the lower appellate Court itself can try the matter after taking further evidence as to the point to be decided and it can dispose of the appeal on merits and in accordance with law.
(b) In the decision reported in 2005 (1) CTC 107 (V. Munusamy (deceased) and others vs. M. Suguna), a Division Bench of this Court has held as follows:-
"7. Based on the averment in the affidavit filed in support of I.A. No. 7745 of 1987, filed under Section 4 (1) of the Act, the trial court, after satisfying itself, gave a finding that the petitioner therein/appellant herein is entitled to purchase the suit property on such finding satisfies one of the conditions prescribed under Section 4 (1) of the Act. No doubt, the trial court has not arrived the value of the share purchased by the transferee i.e., plaintiff. However, as rightly pointed out by the learned senior counsel for the appellant, on this ground, the lower appellate court set aside the order of the trial Court, including the finding of the entitlement of the appellant to purchase undivided share alienated by the family member to stranger alienee. As rightly argued, the principles underlying the exercise of the power of remand by the appellate Court has not been properly applied or exercised by the lower appellate Court. Courts have held that only in exceptional cases where the judgment of the trial Court is wholly unintelligible or incomprehensible, the appellate Court can remand the matter for fresh disposal. Order 41, Rule 23 give ample power to the lower appellate Court to decide all issues, including appointment of a Commission for local inspection, secure finding from the trial Court. Even if certain mistakes crept in the order of the trial court, the same 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 and the power of remand should be sparingly exercised. There should be always 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 appellate Court. In the case on hand, even if there is omission by the trial court regarding determination of the value of the share purchased by the plaintiff, in the light of the above discussion coupled with the mandate provided under Order 41 Rules 23 and 27, the appellate Court itself can ascertain the value either by appointment of a Commissioner or by getting a report from the trial Court. As said earlier, Section 4 (1) of the Act gives option to any member of the family who is a co-sharer in respect of a dwelling house, a portion whereof has been transferred to a person who is not a member of such family, to purchase the share of such transferee if a suit for partition is filed by that transferee. On such option being exercised, the valuation of such share has to be determined. The crucial date for the purpose of fixing the valuation of the share of such transferee is the date when option to purchase in accordance with Section 4 of the Act is exercised by the defendant co-sharer.
(c) In the decision reported in (2008) 8 SCC 485 (Municipal Corporation, Hyderabad vs. Sunder Singh), it has been held by the Honourable Supreme Court that an order of remand should not be passed by the First Appellate Court as a matter of course. In fact, the Court should be slow in exercising the discretionary powers conferred under Rule 23. Further, before passing an order of remand, the first Appellate Court has to record reasons that re-trial was necessary and also give finding that the decree and judgment passed by the trial Court is liable to be reversed and only then, an order of remand should be passed. In Para Nos. 17, 18, 32, 33 and 34, it was held as follows:-
17. Order 41 Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court.
18. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order 41 Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.
32. A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order 41 Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order 41 Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence.
19....
33. Order 41 Rule 23-A of the Code of Civil Procedure is also not attracted. The High Court had not arrived at a finding that a retrial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order 41 Rule 23 of the Code.
34. An order of remand cannot be passed on ipse dixit of the court. The provisions of Order 2 Rule 2 of the Code of Civil Procedure as also Section 11 thereof could be invoked, provided of course the conditions precedent therefor were satisfied. We may not have to deal with the legal position obtaining in this behalf as the question has recently been dealt with by this Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas."
(d) In M/s. Sekaran Real Estates, a Partnership firm, by Managing Partner K. Chandrasekaran vs. Punjab National Bank, Mylapore Branch, Mylapore, Madras-4, by its Manager, (2000 (I) CTC 613), a learned single Judge in paragraph No.4, held as follows:-
"It is clear from the above decisions as well as the provisions contained in Order 41, Rules 23 to 29, C.P.C. that duty is cast on the appellate Court to find that the decree of the trial court should be set aside. Even the fact that there are some defects or infirmities in the reasoning of the trial court is not a ground for the appellate court to remand the same to the trial court. The appellate Court should come to the clear conclusion that the findings of the trial court cannot be supported and must be set aside. Only in exceptional cases where the judgment of the trial court is wholly unintelligible or incomprehensible that the appellate Court can remand the suit for fresh trial. A reading of the judgment of the appellate Court would show that it has not at all considered the judgment of the trial court nor pointed out infirmity or defect in the conclusion. Further, the learned appellate Judge has not borne in mind any of the principles mentioned above. A careful scrutiny of the judgment also shows that he never felt that the judgment of the trial court must be set aside or reversed. After allowing the amendment petition, the appellate court has simply directed the trial court to try the matter once again, after affording further opportunity to the parties, the directions contained in the order of remand are vague and too general in character. The fact that the lower appellate Court has not considered the reasoning or merits of the decree of the trial court has not been disputed by the learned counsel for the respondent-Bank.
(e) In Kannathal and four others vs. Arulmighu Kanniammal Karuppasamy Thirukoil, Pothanur Chettipalayam, Coimbatore, rep. by its Executive Officer and another (2007 (2) CTC 49), a learned single Judge of this Honourable Court has held in para No. 15 and 17 as follows:-
"15. It is also settled law that if the issues arising in the suit could be decided on the evidence available on record, the lower Appellate Court itself should decide the case on merits without unnecessarily ordering remand. A perusal of the pleadings in the case shows that all the necessary pleadings are available on record. Even if the Lower Appellate Court was of the opinion that it was necessary to give an opportunity to the plaintiff to amend the pleadings, that opportunity could have been given in the First Appellate Court itself and for that purpose, the remand is not needed.
16......
17. In the light of the law laid down by the Apex Court in the decisions reported in Ishwardas vs. State of Madhya Pradesh and others, AIR 1979 SC 55 and P. Purusottam Reddy and another vs. Pratap Steels Limited, 2002 (2) ctc 686, this Court is of the considered view that the Lower Appellate Court has committed an error of law in remanding the matter only for the purpose of affording an opportunity to the plaintiff to amend the pleadings and to adduce additional evidence. As laid down by the Apex Court it is not proper for the Appellate Court to remand the case to enable the parties to make good their lapse.
(f) In Sujatha vs. Vijay Anand and another ((2007) 4 MLJ 447), a learned single Judge of this Court in Para No.15 and 16, has held as follows:-
"15. In the case on hand, the learned District Judge has not reversed or set aside the finding of the trial court. It is only to give opportunity to the plaintiffs to prove the Will dated 12.08.1982, the lower Appellate Court has remanded that suit to the trial court. The procedure adopted by the learned District Judge is not correct. The District Judge himself got jurisdiction and powers under Order 41 and Section 151 of C.P.C.
16. I am of the opinion that the order of remand of the suit cannot be sustained and therefore, the judgment and decree of the learned District Judge remanding the suit to the trial court are set aside. The learned District Judge is directed to take the first appeal and I.A. No. 53 of 2001 on its file and give opportunity to both parties with regard to the proof of the said document dated 12.08.1982 and dispose of the first appeal on merits.
13. In the aforesaid decisions, it was categorically held that order of remand should not be passed as a matter of course and without giving a finding as to how the decree and judgment of the trial court is perverse, illegal, especially, after amendment to Order 41 Rule 23A of CPC. It was also categorically held that the First Appellate Court has got every right to take further evidence, or appoint an advocate commissioner, if so necessary and there is no necessity for remanding the matter back to the trial court as the lower Appellate Court itself can try the matter and dispose of the appeal on merits and in accordance with law. Thus, it is clear that an appellate court should be vigilant in ordering a remand, when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 CPC, because an unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.
14. In the case on hand, the first appellate Court remanded the matter back to the trial court for fresh consideration summarily on the only ground that the plaintiffs have filed interim application for reception of additional documents and the said documents have to be marked and retried. No finding has been given by the first appellate Court as to how the decree and judgment passed by the trial court is vitiated warranting it to pass an order of remand. Under these circumstances, the judgment and decree passed by the first appellate Court is liable to be set aside.
15. In the result, this Civil Miscellaneous Appeal is allowed and the judgment and decree passed by the first appellate Court is set aside and the matter is remanded to the file of the first appellate Court to mark the additional documents by examining witnesses and affording an opportunity to the parties to cross examine the witnesses, and to decide the case afresh in the appeal once for all. No costs. Consequently, connected miscellaneous petition is closed.
To
1.The 2nd Additional Subordinate Judge, Tiruchirapalli.
2.The Principal District Munsif cum Judicial Magistrate, Lalkudi.
3.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
.