Madras High Court
Mannu Naicker And Ors. vs Kalaimani And Ors. on 25 June, 1987
Equivalent citations: (1987)2MLJ240
JUDGMENT K.M. Natarajan, J.
1. This appeal by the defendants is directed against the order of remand passed by the learned Subordinate Judge, Tiruvannamalai, in A.S. No. 40 of 1979. The facts which are necessary for the disposal of the appeal are briefly as follows : The respondents/plaintiffs have filed the suit for declaration and permanent injunction in respect of 12 items of suit properties. Their case is that one Narayana Naicker had four sons, namely, Perumachi Naicker, Kodalan alias Muthu Naicker, Ramasami Naicker and Mottaiya Naicker and defendants 1 to 4 are the sons of Perumachi Naicker. The fifth defendant is the son of the first defendant. Kodalan alias Muthu Naicker had a son by name Muthu Pillai. Ramasami Naicker had three sons by name Chinnakolandai, Narayanasami and Manicka Naicker. The plaintiffs are the sons of Chinnakolandai. A partition was effected between the sons of Narayana Naicker about 50 years ago in which the suit properties fell to the share of Mottai Naicker. Mottai Naicker was in possession and enjoyment of the properties till his death. After his death, his widows Vellachi and Rathinammal were in possession and enjoyment of the properties, Vellachi died about 27 years ago and Rathinammal, the co-widow, succeeded to the estate of the late Vellachi and as such she was in possession and enjoyment of the entire estate of Mottai Naicker. Rathinammal executed a registered settlement deed in favour of the plaintiffs alienating the suit properties to them. The plaintiffs are in possession and enjoyment of the suit properties by paying kist and patta also has been transferred in their names. Since the defendants attempted to commit trespass, the plaintiffs have filed the suit for declaration and injunction.
2. The suit claim is resisted by the defendants. The first defendant has filed a written statement, which was adopted by other defendants. The defendants have contended there had been no partition between the sons of Narayana Naicker at any time. Mottai Naicker died as an undivided coparcener in 1941. His widows were not entitled to succeed to the estate of their deceased husband as per Hindu Law. The estate of Mottai Naicker passed by survivorship to his three brothers. Rathinammal and Vellachi were provided maintenance from out of the estate. Rathinammal had no right, title or interest to settle the properties in favour of the plaintiffs. The settlement is a void transaction. The plaintiffs are only co-owners with the defendants. Hence the suit for declaration and injunction is not maintainable.
3. The learned District Munsif, Tiruvannamalai, has framed as many as eight issues and on the side of the plaintiffs P.Ws. 1 to 4 were examined and Exs. A1 to A33 were marked. On the side of the defendants, D.Ws. 1 and 2 were examined and Ex. B1 to B4 were marked. Ultimately, the learned District Munsif decreed the suit in its entirety as prayed for. Aggrieved by the same, the appellants herein preferred an appeal in A.S. No. 40 of 1979. The learned Subordinate Judge, Tiruvanna malai, while confirming the conclusion of the trial Court with regard to items 1 to 8, held so far as items 9 to 12 are concerned that they have not let in any evidence to establish their rights and there is no evidence to establish the specific share of the plaintiffs therein. The lower appellate Court has also found that the trial Court has not considered this aspect of the case, namely, whether or not the plaintiffs have got any share in items 9 to 12. Hence, as regards items 9 to 12 of the suit properties, the learned subordinate Judge considered it as expedient to remit the matter to the trial Court to consider whether or not the plaintiffs have any share in the wells referred to as items 9 to 12. Accordingly, the judgment and decree of the trial Court so far as the findings regarding items 9 to 12 are concerned were set aside and the matter was remitted to the trial Court. The parties were also given opportunity to adduce fresh evidence in respect of items 9 to 12. With respect to items 1 to 8 of the suit properties, the judgment and decree of the trial Court were confirmed. Aggireved by the remit order passed by the lower appellate Court, the defendants have preferred this appeal.
4. Learned Counsel for the appellants submitted that when the learned appellate judge came to the conclusion that the plaintiffs have not adduced any evidence to establish the well rights in items 9 to 12, he ought to have allowed the appeal in respect of those items and confirmed the judgment and decree of the trial Court in respect of other items. Instead, the learned Subordinate Judge has chosen to remand the matter so as to give opportunity to the plaintiffs to prove their case in respect of items 9 to 12 and so the order of remand is erroneous and illegal. In support of his contention, the learned Counsel for the appellants has referred to the decision in Pattammal v. Yasotha Ammal , wherein it has been held that remand cannot be ordered to enable the parties to fill up lacunae in a case, and that the discretion should not be exercised in an aribitrary manner but should be exercised by sound principles. In Subramanian v. Kaliammal (1968) 2 M.L.J. 548, Ismail, J. (as he then was) held that the expression "where the appellate Court considers it necessary in the interests of justice to remand the case" in Order 41, Rule 23 C.P.C. as amended by the Madras High Court, has to be considered with the other alternative that on having set aside the judgment and decree of the trial Court, the appellate Court itself will have to finally dispose of the matter in the appeal. Consequently the contrast is between the power to remand for fresh disposal and the power to decide by the appellate Court itself with the result the expression, in the interests of justice" has reference to the appellate Court remanding a suit for fresh disposal instead of itself deciding it. The expression, interests of justice" does not widen the power of the appellate Court to remand a suit in the sense that irrespective of the fact whether it comes to the conclusion that the judgment and decree of the trial Court are liable to be reversed or set aside or not, if the appellate Court is of opinion that the interests of justice require that there should be a fresh trial, it can remand the suit for fresh disposal. There is no principle or authority to support such a contention. In Rajappan v. Natesan , it has been held that the appellate Court has to keep the appeal on file and dispose it of after taking the additional evidence either itself or directing the trial Court to take the additional evidence under Order 41, Rule 28, C.P.C. In Sowdammal (alias) Sundarammal v. Veerammal (1970) 1 M.L.J. 205, it has been held that it is clear from the scheme of the rules that generally speaking only where it is not possible to apply Order 4 Rules 24 to 27 C.P.C. a remand should be resorted to under Order 41, Rule 23, C.P.C. It should be noted further that before remanding the case Order 41, Rule 23 itself contemplates that the appellate Court should reverse or set aside the decree. Reading the rules together this provision will not apply to a case where the trial Court has considered the entire evidence but in the opinion of the appellate Court a different view ought to be taken of the evidence and the appellate Court is in a position to come to a finding on the evidence on record. In such a case, it is the duty of the appellate Court to consider the matter as it stands and give its own finding in reversal of the finding of the trial Court. But that would not justify a remand. The provisions of Order 41, Rule 27, C.P.C. should be strictly complied with by the appellate Court In the instant case it being common case that the parties were not prevented from adducing any evidence the only test that should be applied by the appellate Court is whether the appellate Court itself requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause As has been pointed out in a number of decisions the appellate Court should come to a finding on that question and this finding could, only be after considering the entire evidence already on record It is clear from the ratio laid down in the above decisions that the order of remand in the instant case is unsustainable as the learned Subordinate Judge remanded the matter only for the purpose of giving an opportunity to the plaintiffs to adduce further evidence to establish their case with regard to items 9 to 12.
5. On the other hand learned Counsel for the respondents contended that there is acceptable evidence on the side of the plaintiffs even before the trial Court and the learned Appellate Judge has not correctly appreciated the same He also drew my attention to the evidence of the witnesses and other circumstances. He would also contend that though the order of remand cannot be supported yet the appellate Court has power to permit the parties to adduce additional evidence if necessary. Learned Counsel for the appellants also did not seriously oppose this but he would say that it should be left to the discretion of the appellate Court whether the additional evidence is necessary or not.
6. After hearing counsel on both sides and after going through the judgment of both the Courts below and other materials I am of the view that the order of remand is unsustainable and it is liable to be set aside Accordingly the appeal is allowed, the judgment and decree of the lower appellate Court are set aside The lower appellate Court is directed to restore the appeal A.S. No. 40 of 1979 on file give opportunity to both parties to adduce further evidence oral and documentary in respect of items 9 to 12 of the suit properties before the lower appellate Court itself and to dispose of the appeal on merits and according to law In the circumstances of the case there will be no order as to costs.