Madras High Court
Poolar vs Gomathi Moopanar And 2 Ors. on 30 August, 1996
Equivalent citations: 1996(2)CTC539, 1997 A I H C 59, (1996) 2 CTC 539 (MAD)
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Third defendant in O.S.No.94 of 1981 on the file of District Munsif, Sankarankoil, is the appellant in the above civil miscellaneous appeal. The first respondent herein, plaintiff in the said suit filed the same for declaration and permanent injunction. Apart from examining himself as P.W.I, the plaintiff has examined 3 more witnesses as P.Ws.2 to 4. He has also marked Exs. A1 to A23. On the other hand, the third defendant was examined as D.W.I and the second defendant was examined as D.W.2. They have also marked Exs.B1 to B6 in support of their defence, The Commissioner's report and sketch were marked as Exs.C1 to C3. After framing necessary issues and in the light of the evidence on record, the learned District Munsif dismissed the suit with costs.
2. Aggrieved by the dismissal of the suit, the unsuccessful plaintiff filed appeal in A.S.No.100 of 1986 before the Subordinate Judge, Tenkasi. The lower appellate court after framing necessary points for consideration and after pointing out some defects in the plaintiffs case, remanded the matter to the trial court for fresh consideration.
3. The third defendant is questioning the order of remand made by the lower appellate court in this appeal.
4. Mr. P. Peppin Fernando, learned counsel for the appellant, submits that the reason given by the lower appellate court for remitting the matter to the trial court cannot be sustained. He also points out that there is no finding by the lower appellate court that the judgment and decree of the trial court are erroneous and are liable to be set aside. He further submits that it is not possible for the lower appellate court to remit the matter to the trial court, in order to set right the lacuna of the plaintiff's case. For the above mentioned submissions, he also cited the following decisions:-
(1). Visalakshmi Ammal v. Dhanalakshnd Ammal, 1989 (2) L.W 414.
(2). Devagi Plantations Ltd., Nagercoil represented by its Managing Director D. Subramaniam v. State of Tamil Nadu represented by the District Collector. Kanyakumari District 1993 (2) L.W 59.
(3). Kannu Naicker v. Kalaimani, 1987 (100) L.W 922.
5. On the Other hand, Mr. M. Palani, learned counsel for the first respondent, submits that on the facts and circumstances of the case, the order of remand made by the lower appellate court is justified and prays for dismissal of the civil miscellaneous appeal. I have carefully considered the rival submissions.
6. After discussing the case of both parties, the lower appellate court in paragraph No. 8 came to the following conclusion:-
Admittedly, before the lower appellate court, no petition has been filed for amendment of the plaint On the other hand, it is the contention of the learned counsel for the first respondent that even before the trial court the plaint has already been amended. If such is the position, the lower appellate court itself can consider in the light of the available materials and dispose of the same.
7. With regard to order of remand, as held in H.M. Kari Goundar v. S.P. Sgarmull, 81 L.W 46 (SN) before passing an order of remand, the appellate court must find that the decree of the trial court requires to be set aside. Likewise, the word "interest of justice" mentioned in Order 41, Rule 23 to 27, C.P.C. does not widen the power of the appellate court to remand the suit. In other words, the appellate court should first come to the conclusion that the decision of the trial court is liable to be reversed. A similar view has been expressed by Govardhan, J., in a recent decision reported in Soosairaj v. State of Tamil Nadu Rep. by District Collector, Pudukkottai, I.L.R. 1996 (2) Mad. 1339.
8. As rightly pointed out by the learned counsel for the appellant, the reason and the approach of the lower appellate court in remanding the case is erroneous and contrary to the provisions of Order 41, Rule 23 to 27, C.P.C. In a similar circumstance, this Court in a decision reported in Devagt Plantations Ltd., Nagercoil represented by its Managing Director D. Subramaniam v. State of Tamil Nadu represented by the District Collector. Kanyakumari District 1993 (2) L.W 59, cited supra has held.
"The conditions prescribed for the exercise of the power of remand under Order 41, Rule 23, C.P.C. are mandatory and not a mere formality. To arrive at a finding on the material on record that the judgment of the trial court is erroneous and is liable to be reversed or set aside is a condition precedent for the appellate court to pass and order of remand under Order 41, Rule 23, C.P.C. So long as that finding has not been arrived at, there is no scope for the appellate court reversing or setting aside the judgment and decree of the trial court and as a consequence thereof remanding the suit for fresh disposal. It is settled law that were a suit has been disposed of by a trial Court on all issues, the appellate court cannot make an order of remand for fresh disposal of the suit unless it reverses the decree of the trial court. In other words, the appellate court should come to the conclusion that the judgment and decree of the trial court cannot be sustained before it an think of remanding the suit for fresh disposal."
9. The provisions of the Code of Civil Procedure, namely, Order 41, Rule 23 read with Order 27, Rule 9 give ample power to the lower appellate court to issue commission for local inspection in the same manner in which the trial court can act under Order 26, Rule 9.
10. The proposition that the order of remand should not be to fill up the lacuna of the case of the party. It is useful to refer a Division Bench judgment of this Court reported in Visalakshmi Ammal v. Dhanalakshmi Ammal, 1989 (2 ) L.W 414 cited supra, which reads thus, The unsatisfactory consideration of an issue by the first court, and non-advertence to the judicial precedents by the first court while deciding an issue and the need to take additional evidence, should not always be counted in favour of making an order of remand. These lacunae, if in fact they are present, 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 on the above grounds. 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 light of the principle enunciated in the above Division Bench judgment, the lower appellate court should make an endeavour to dispose of the case by itself and the commissions and omissions made by the trial court could be corrected by the appellate court.
11. In view of the settled position, I am unable to sustain the reason given by the lower appellate court for remanding the matter to the trial court. As stated in those decisions, it is open to the lower appellate court to consider the case of the parties with reference to the amended plaint and dispose of the same on way or other. In those circumstances, the judgment and decree of the lower appellate court in remitting the suit to the trial court is set aside the C.M.A., is allowed and the lower appellate court is directed to restore the same on its file and dispose of the same as mentioned above. Inasmuch as the appeal is of the year 1986, I direct the lower appellate court to dispose of the appeal within 3 months from the date of receipt of records from this court. There will be no order as to costs.