Madras High Court
N.Nachimuthu Gounder vs Sri.Kasiviswanatha Swami on 10 December, 2007
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10/12/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD) No.928 of 2007 and M.P.No.1 of 2007 N.Nachimuthu Gounder .. Appellant/ 3rd Respondent/ 3rd Defendant Vs 1.Sri.Kasiviswanatha Swami Devasthanam, Kumbakonam Town, represented by its Executive Officer, G.Krishnakumar .. 1st Respondent/ Appellant/ Plaintiff 2.Kumbakonam Municipality, represented by its Commissioner, having its Office at Patel Buildings, Dr.Moorthy Road, Kumbakonam Town, Kumbakonam. Tanjure. 3.B.Mohammed Niyaz 4.S.Govindarajan ... Respondents 2 to 4/ Respondents 1, 2 & 4/ Defendants 1, 2 & 4 Prayer Appeal filed under Order 43 and Rule 1(U) of the Code of Civil Procedure, against the judgment and decree passed in A.S.No.212 of 2005 dated 15.03.2007 by the learned Principal Subordinate Judge, Kumbakonam, remanding the matter and setting aside the judgment and decree passed in O.S.No.33 of 2002 dated 10.02.2002 by the learned Principal District Munsif, Kumbakonam. !For Appellant ... Mr.M.V.Krishnan ^For Respondents ... Mr.V.Sarangapani for R.1 Mr.K.Rajkumar for R.2 Mr.V.Chandrasekaran for R.3 :JUDGMENT
This appeal is focussed as against the judgment and decree passed in A.S.No.212 of 2005 dated 15.03.2007 by the learned Principal Subordinate Judge, Kumbakonam, remanding the matter and setting aside the judgment and decree passed in O.S.No.33 of 2002 dated 10.02.2002 by the learned Principal District Munsif, Kumbakonam.
2. For convenience sake, the parties are referred herein according to their litigative status before the trial Court.
3. The nutshell facts which are absolutely necessary and germane for the disposal of this Civil Miscellaneous Appeal would run thus:
The first respondent/plaintiff herein filed the suit as against the appellant herein/third defendant and the respondents 2 to 4/Defendants 1, 2 and
4 for recovery of possession of the suit property after removal of the encroachments like road laid and the materials dumped, fence and compound wall put up and masonary constructions made thereon and also claiming damages for use and occupation on the ground that the first defendant Municipality laid unauthorisedly the road in part of the suit property of the plaintiff and that the defendants 2 and 3 encroached into the property. The fourth defendant was originally the tenant of a certain extent of land of the plaintiff and he surrendered 18 1/2 cents out of his leasehold land to the plaintiff after communicating the plaintiff that the defendants 2 and 3 each were put in possession of 8 1/2 cents of land (totally 17 cents) of the leasehold land in favour of the fourth defendant. However, the defendants 2 and 3 have not taken any steps to get their possession legalised as their possession without the sanction of the Commissioner, H.R & C.E Department, Chennai, cannot be taken as possession by lessees, but they have to be treated only as trespasser. Accordingly, the plaintiff pressed for the reliefs as set out in the plaint.
4. The defendants filed the written statement resisting the suit. Thereupon, the trial Court framed issues and during trial, P.W.1 was examined and Exs.A.1 to A.17 were marked on the side of the plaintiff and D.W.1 and D.W.2 were examined and Exs.B.1 to B.3 were marked on the side of the defendants and Exs.C.1 to C.4 were marked as Court documents.
5. Ultimately, the trial Court dismissed the suit.
6. Challenging the judgment and decree of the trial Court, the plaintiff preferred the appeal in A.S.No.212 of 2005 before the Principal Sub Court, Kumbakonam, which remanded the case back to the trial Court.
7. Being aggrieved by and dissatisfied with, the order of remand, the third defendant filed this appeal on the main grounds inter alia thus:
The first appellate Court was not justified in remanding the matter instead of deciding the case by itself. The first appellate Court having agreed with the finding of the trial Court, remanded the matter back to the trial Court, which is against Order 41, Rule 23(A) of the Code of Civil Procedure.
8. Heard both sides.
9. The point for consideration is as to whether the order of remand by the first appellate Court is in violation of Order 41 Rule 23(A) of the Code of Civil Procedure?
10. The learned Counsel for the third defendant correctly highlighted the law relating to remand of civil cases by citing the following decisions:
(i) REMCO Inds. Workers House Bldg, Co-Op. Socy v. Lakshmeesha M. reported in AIR 2003 SUPREME COURT 3167.
(ii) Srinivasagam Pillai v. Kuttiah reported in AIR 1989 MADRAS 18.
(iii)Sujatha v. Vijay Anand reported in (2007) 4 MLJ 447.
(iv) Kannathal v. Arulmighu Kanniammal Karuppasamy Thirukoil reported in 2007 (2) CTC 49.
11. The perusal of the aforesaid decisions would leave no doubt in the mind of the Court that the appellate Court should not simply shirk its responsibility by remanding the matter to the trial Court and the said Court itself should dispose of the matter. Accordingly, the learned Counsel for the third defendant would pray for directing the first appellate Court itself to dispose of the matter on merits.
12. Whereas the learned Counsel for the first respondent/plaintiff would contend that the first appellate Court thought fit to give one more opportunity to the plaintiff to file necessary application for getting the plaint amended so as to furnish correct measurements and also to adduce further evidence; in such an event, the plaintiff and the third defendant would be having opportunity to adduce further evidence.
13. The learned Counsel for the third defendant drew the attention of this Court to the last part of the judgment of the first appellate Court under Issue No.1. An excerpt from it, would run thus:
"Non-mention of the linear measurements and boundaries will not entitle the plaintiff Devasthanam to seek a definite relief for recovery of possession against the respective defendants. The findings given by the trial Judge is acceptable to this Court. However, this Court is of the opinion that the suit may be remanded back to the trial Court and the plaintiff Devasthanam shall carry out the measurements and the boundaries of encroachment by the defendants."
14. The learned Counsel for the third defendant is right in contending that the first appellate Court was wrong in one breathe stating that the finding given by the trial Court is acceptable and in another breathe remanding the matter back to the trial Court for getting the plaint amended so as to incorporate the linear measurements and boundaries considering the Advocate Commissioner's report which does not tally with the schedule of the plaint. Once, the appellate Court got satisfied with the measurements as found in the Commissioner's report and there are only slight variations in the plaint schedule, it is always open for the appellate Court itself to pass orders taking into account the measurements as found in the Commissioner's report and in alternative, the appellate Court itself has got the power to give direction to the plaintiff to take steps to get the plaint amended instead of remanding the matter.
15. Incontrovertibly and indubitably, indisputably and unassailably, the fact remains that the first appellate Court has not given any specific finding as on what grounds the first appellate Court agreed with the finding of the trial Court. The trial Court framed various issues as many as five in number and one additional issue, including the issue relating to limitation. But, the appellate Court has not applied its mind on those points and simply remanded the matter on the sole ground that the linear measurements were not properly specified in the schedule of the plaint and that it requires amendment.
16. Such an attitude of the first appellate Court clearly falls foul of Order 43 Rule 23-A of the Code of Civil Procedure. No more elaboration is required in this regard.
17. The learned Counsel for the third defendant correctly submitted that for no good reason, if the trial Court is allowed to deal with the matter once again, the proceedings will get protracted to the detriment of all the parties concerned. Whereas the learned Counsel for the plaintiff would submit that in any event, any one of the parties will have one more opportunity of filing first appeal from the trial Court's judgment. But, such an argument cannot be countenanced as Order 41 Rule 23-A of the Code of Civil Procedure clearly mandates that there should not be indiscriminate remanding of the matter. The first appellate Court which is expected to give its finality on each issue decided by the trial Court, has not given any specific finding, but simply remanded the matter in a perfunctory manner.
18. In the result, this appeal is allowed and the order of the first appellate Court is set aside and the matter is remitted back to the first appellate Court which is directed to deal with it. Whatever measurements which the plaintiff wants to effect in the plaint, the plaintiff is at liberty to get it carried out. After giving due opportunity to both sides, the first appellate Court itself shall dispose of the matter on merits within a period of four months from the date of receipt of a copy of this judgment. Consequently, connected Miscellaneous Petition is closed. No costs.
rsb To
1.The Principal Subordinate Judge, Kumbakonam.
2.The Principal District Munsif, Kumbakonam.