Madras High Court
Alagumuthu vs Ayyappan .. 1St on 3 October, 2019
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
CMA(MD).No.1000 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.10.2019
CORAM:
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
CMA(MD).No.1000 of 2006 and
M.P(MD).No. 1 of 2006
Alagumuthu ... Appellant / 1st defendant
Vs.
1.Ayyappan .. 1st respondent / plaintiff
2.Murugan
3.Paramasivam
4.Sudalaimuthu
5.Nambi Konar
6.Bagawathi
7.Esaivani
8.Balasubramanian
9.Minor Shanmugasundari
10.Esakkiammal
11.P.Thirumalai
12.Petchiammal .. Respondents / defendants
(Minor 9 respondent rep. through her
th
Mother and Guardian the 6th respondent)
PRAYER: This Civil Miscellaneous Appeal has been filed under Order
43 Rule (v) CPC against the order of remand in Judgment and Decree
dated 28.09.2005 in A.S.No. 56 of 2005 on the file of the Court of the
I Additional Subordinate Judge, Tirunelveli reversing the remanding
the Judgment and decree date 14.10.2004 of O.S.No.46 of 1995 on
the file of the Court of the Principal District Munsif, Valliyoor.
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http://www.judis.nic.in
CMA(MD).No.1000 of 2006
For appellant : Mr. A. Arumugam
For 1st respondent : Mr. D. Nallathambi
For R2 to R4, R6 to R8
10, 12 : No appearance
ORDER
The present Civil Miscellaneous Appeal has been filed challenging the Judgment and Decree, dated 28.09.2005 passed in A.S.No.56 of 2005 on the file of the I Additional Subordinate Judge, Tirunelveli, reversing the Judgment and decree, dated 14.10.2004 passed in O.S.No.46 of 1995 on the file of the Principal District Munsif, Valliyoor.
2. The first respondent / plaintiff has filed the suit for partition. According to the appellant / first defendant, the father of the first respondent / plaintiff has executed a release deed in favour of grandfather of the plaintiff in respect of the suit property and therefore, he is not entitled to the relief. According to the first respondent/plaintiff, at the time of execution of the alleged release deed, he was 9 months old and that as he was 9 months old, his father cannot have any right to execute the release deed releasing his property in favour of the grandfather.
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3. The learned counsel appearing for the appellant contended that the suit was rightly dismissed by the Trial Court, since the age of the plaintiff was not proved beyond doubt by producing any oral and documentary evidence. Aggrieved by the said order, the first respondent/plaintiff has filed an appeal before the learned I- Additional Subordinate Judge, Tirunelveli in A.S.No. 56 of 2005 and in the said appeal, the appellant filed an application to receive his School Transfer Certificate as an additional document. The Court below allowed the said application and marked the additional documents viz., School Transfer Certificate as Ex.A3. Though the transfer certificate was received by the appellate Court as additional documents, the first appellate Court refused to pass any order in respect of the validity of the document at the appellate stage and remanded the appeal to the trial Court to try the suit afresh based on the additional document.
4. The learned counsel appearing for the appellant further contended that the First Appellate Court should not have remanded the matter since the Transfer Certificate is not a primary evidence and it is only secondary piece of evidence. So, based on the secondary piece of evidence, the first Appellate Court ought not to have 3/8 http://www.judis.nic.in CMA(MD).No.1000 of 2006 remanded the matter. He further contended that the First Appellate Court itself ought to have conducted enquiry in order to save time and passed orders on merits as the First Appellate Court is not powerless to examine witness and pass orders.
5. The learned counsel for the first respondent / plaintiff fairly agreed with the submission of the appellant/first respondent that the First Appellate Court has power to examine the witness, to receive the additional documents and decide the issue. He further contended that instead remanding the matter, the First Appellate Court itself ought to have decided the appeal by allowing the parties to let in evidence in respect of Ex.A3 and remanding the matter to the Court below would only cause hardship to both the parties. Since the suit is of the year 1995 and this appeal has been pending for the past 13 years, this Court may set aside the judgment and decree passed by the First Appellate Court and to direct the First Appellate Court to conduct enquiry with regard to Ex.A3 and pass appropriate orders on merits.
6. Though the names of the respondents 2 to 12 printed in the cause list, none appeared for them. The appeal was dismissed 4/8 http://www.judis.nic.in CMA(MD).No.1000 of 2006 against the respondents 5 and 11 vide order dated 09.02.2017 and 29.11.2017 respectively.
7. I have heard the learned counsel appearing for the appellant and the first respondent, and perused the materials available on record.
8. Originally, the first respondent / plaintiff filed a suit for partition in O.S.No.46 of 1995 on the file of the I Additional Subordinate Judge, Tirunelveli. The main contention of the first respondent / plaintiff is that his father has executed the released deed Ex.B1 while he was 9 months old and as he was alive, his father cannot have any right to release his share in the joint family property and that he is also having right over the property. However, the suit was dismissed by the Court below due to the reason that the age of the first respondent / plaintiff was not proved. Against the said order, the first respondent / plaintiff filed appeal and before the First Appellate Court, he filed an application to receive the School Transfer Certificate as additional document and the same was allowed and the School Transfer Certificate of the first respondent/plaintiff was marked as Ex.A3. However, the First Appellate Court, without deciding the 5/8 http://www.judis.nic.in CMA(MD).No.1000 of 2006 matter on merits, has remanded the matter to the trial Court to try the suit afresh and to decide with regard to the age of the plaintiff.
9. The learned counsel appearing for the appellant as well as the first respondent would submit that the First Appellate Court ought not to have remanded the matter only for deciding the issue with regard to age of the first respondent / plaintiff based on the additional document, which was marked as Ex.A3. On the other hand, it should have permitted the parties to let in evidence in respect of Ex.A3 and decide the appeal on merits.
10. The original suit was filed in the year 1995 and the appeal was filed in the year 2006. In order to avoid further delay, the First Appellate Court should have disposed of the appeal after examining the witnesses to prove Ex.A3 - Transfer Certificate. This Court does not find any merit in remanding the matter to the trial Court for the parties to let in evidence in respect of Ex.A3 - Transfer Certificate and to try the suit afresh. Therefore, the judgment and decree passed by the First Appellate Court is set aside and the First Appellate Court is directed to permit the parties to let in evidence in respect of Ex.A3 and to decide the appeal on merits and in 6/8 http://www.judis.nic.in CMA(MD).No.1000 of 2006 accordance with law within a period of three months from the date of receipt of a copy of this judgment.
11. The Civil Miscellaneous Appeal is disposed of accordingly. No costs. Consequently, connected Miscellaneous Petition is closed.
03.10.2019
Index : Yes / No
Internet : Yes / No
trp
1. I Additional Subordinate Judge, Tirunelveli
2. The Principal District Munsif, Valliyoor. 7/8 http://www.judis.nic.in CMA(MD).No.1000 of 2006 KRISHNAN RAMASAMY, J., trp CMA(MD).No.1000 of 2006 and M.P(MD).No. 1 of 2006 03.10.2019 8/8 http://www.judis.nic.in