Madras High Court
Lakshmiammal vs Natchiar Ammal on 19 August, 2015
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.08.2015
CORAM
THE HONOURABLE MR.JUSTICE P.DEVADASS
C.M.A.NO.2210 of 2002
and
C.M.P.NO.16061 of 2002
1.Lakshmiammal
2.Malaiyandi
3.Ramar
4.Avudaithai ..Appellants/Respondents/Defendants 1 to 4
.vs.
1.Natchiar Ammal
2.Harikesavan
3.Haripalkannan
4.Karpagaraj
5.Manimekalai ..Respondents/Appellants/Plaintiffs 2 to 6
PRAYER
Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of Civil
Procedure Code r/w Section 104 of Civil Procedure Code against the judgement
and decree made in A.S.No.16 of 2002, dated 30.04.2002 on the file of Sub-
Court, Sankarankovil in remanding and setting aside the judgement and decree
made in O.S.No.561 of 1996, dated 11.09.2001, on the file of the Principal
District Munsif Court, Sankarankovil.
!For appellants : M/s.F.X.Eugene
^For Respondents : M/s.S.Meenakshisundaram
1 to 5
:JUDGEMENT
This is a defendants, appeal.
2.The respondents/Plaintiffs filed the suit in O.S.No.561 of 1996 in the court of the learned Principal District Munsif, Sankarankovil seeking declaration with respect to item Nos. 2 to 6 in the second schedule of the suit properties and for consequential injunction tracing their title to the suit property based on certain title deeds.
3.On the other hand, the defendants through first defendant have filed written statement, denying the title as well as possession of the plaintiffs. Triable issues were framed. The suit was put on trial. Evidence both oral and documentary were adduced. The trial Court came to the conclusion that the plaintiffs have not proved their case and thus dismissed the suit.
4.In the circumstances, the plaintiffs have gone to the next appellate court / Sub-Court, Sankarankovil preferring an appeal in A.S.No.16 of 2002. Before the said appellate Court, threadbare arguments were placed by both sides. The first appellate Court reappreciated the oral and documentary evidence. The appellate Court found that the plaintiffs are in possession and merely on account of that it cannot be held that they are having title to the suit property. The first appellate Court referred to the Advocate/Commissioner's report and plan,namely Exs.C1 and C2 filed in the trial Court and in view of the divergent cases put up by the parties based on the respective title deeds what was noted by the learned Advocate/Commissioner is not sufficient enough to resolve the controversy in the suit. The first appellate Court came to the view that it is to be found out whether the second schedule of the suit property lies within the limits of property of the plaintiffs' as mentioned in their title deed or it lies within the property schedule appended to the title deed of the defendants. In such circumstances, it came to the view that the inspecting of the property again by the Advocate/Commissioner and measuring the suit property with reference to title deeds of both sides with the assistance of Surveyor and making report thereon will enable the Court to pronounce judgement on the controversy. Thus, remanded the matter back to the Trial Court to carry out the above direction and for fresh disposal.
5.Assailing the said remand order, the defendants have directed this Civil Miscellaneous Appeal.
6.The learned counsel for the appellants would contend that for mere re-doing exercise by the Advocate/Commissioner the appellate Court cannot sent back the matter to the trial Court, when especially, it itself can do that work. The learned counsel for the appellants would also submit that already when sufficient materials are available on record, in the light of the submissions of both sides, it can re-appreciate the evidence and give its findings in the appeal.
7.In support of his submissions, the learned counsel for the appellants would cite the following decisions:
(1)K.Gopalan Nair .vs. K.Balakrishnan Nair and others ( (2005) (12) SCC Cases 351) (2)Kannathal and 4 others .vs. Arulmighy Kanniammal Karuppasamy Thirukkoil, Pothanur, Chettipalayam, Coimbatore (2007(2) CTC 49)
8.On the other hand, the learned counsel for the respondents/plaintiffs would submit that in the facts and circumstances, it is not the wish of the plaintiffs nor of the defendants. It is the wish of the Court to arrive at a correct conclusion. The Court has to take a just decision. When the Court feels that it needs certain aspects to be considered and it can form a opinion that doing of certain will enable it to make a correct decision, that cannot be faulted. Such a view has been taken in this by the first appellate Court.. In such circumstances, the decisions cited are not applicable to the facts of this case. Respondents have also filed I.A for appointment of an Advocate/Commissioner.
9.The learned counsel for the respondents would also submit that in view of the decision of the Honourable Apex Court in Jegannathan and another .vs. Raju Sigamani and another ( 2012(3) CTC 410), in which, it is held that even a remand order has been passed by the appellate Court under Order 41 Rule 23-A, the constraints attach to Section 100 C.P.C relating to filing of Second Appeal will continue to apply to such a remand order. In other words, an appeal preferred under Order 41 Rule 23-A must also contain substaqntial question of law. Thus an appeal preferred as against the remand order is also akin to section 100 C.P.C. In the circumstances here, the learned counsel for the respondents would found fault with this appeal as no substantial question was framed in this case.
10.I have anxiously considered the rival submissions, perused the materials on record nd the impugned order and the decisions cited.
11.The most important aspect is whether the remand order contains reasons as to why the matter has been remanded. Whether it is escape route to abdicate its judicial functions. Whether certain functions are required to be done, which are such that it will enable the Court to take a decision in the case.
12.The appellate Court has ample powers to receive additional evidence/documents remanding the matter it can keep the appeal also on board and get certain functions or certain issues to be done or decided by the trial Court, on a particular point and sent back with its report thereon and dispose of the appeal on merits thereafter.
13.But under certain circumstances, after hearing the entire appeal, on merits, the appellate Court can sent back the entire suit. Then it is covered under order 41 Rule 23-A of Civil Procedure Code. That is what the case before us.
14.Now, in this case, the first appellate Court has given a specific reason that it become necessary to find out whether the suit second schedule lies within the boundary limits of the plaintiffs or defendants with reference to their title deeds and say is also an important point in the suit. In such circumstances, we are not to find fault with the impugned order of the appellate Court. In such view of the matter arguments based on Jagannathan's case (supra) becomes academic.
15.In the circumstances, ordered as under:
(i).The impugned judgment of the Sub-Court, Sankarankovil passed in A.S.No.16 of 2002, on 30.04.2002 is confirmed.
(ii).In pursuance of the directions contained in the judgement dated 30.4.2002 the learned Principal District Munsif, Sankarankovil will re-
issue the Commission Warrant to the very same Advocate/Commissioner in terms of the Sub-Court, Sankarankovil, dated 30.4.2002.
(iii).After filing of the Advocate/Commissioner's report with the trial Court will give one week time to both side to file their written objections, if any.
(iv)The Advocate/Commissioner remuneration shall be fixed by the trial Court and the same shall be paid by the respondents/Plaintiffs.
(v)Thereafter based on the evidence available on record, after hearing both sides the trial Court shall dispose of the suit in OS.No.561 of 1996 within two months from the date of filing of their Written objections, if any, to the report of the Advocate/Commissioner.
16.Accordingly, the Civil Miscellaneous Appeal is disposed of. No costs. Consequently, connected Civil Miscellaneous Petition is closed.
To
1.The Princpal District Judge, Tirunelveli, Tirunelveli District..
2.The Sub-Judge, Sankarankovil.
3.The Principal District Munsif, Sankarankovil. .