Madras High Court
S. Shanmugham vs S. Sundaram, S. Vasudevan, Valliammal, ... on 26 April, 2005
Equivalent citations: (2005)2MLJ552
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT S.K. Krishnan, J.
1. Aggrieved by the the judgment and decree dated 29.11.2002 passed in A.S.No.139 of 2001 by the Second Additional District Judge, Coimbatore, the plaintiff has preferred this appeal.
2. The facts-in-brief leading to the filing of this appeal are as follows:
a. Originally, the appellant/plainitff has filed a suit in O.S.No.262 of 1988 before the learned Subordinate Judge, Tiruppur for partition and separate possession.
b. The first and fourth defendants in the suit are father and mother of the plaintiff respectively. The second and third defendants are the brothers of the plaintiff.
c. On the basis of oral and documentary evidence, the learned Subordinate Judge, Tiruppur, passed a preliminary decree holding that the plaintiff is entitled for 1/5 th share in the plaint schedule properties and therefore, 1/5 th share in all the schedule properties be handed over to the plaintiff.
d. Thereafter, the plaintiff filed an application in I.A.No.893 of 1992 before the trial Judge, for passing a final decree. After hearing the both sides, the learned Subordinate Judge, passed a final decree holding that the plaintiff is entitled for 'A' schedule properties.
e. As against the judgment and decree of the Subordinate Judge, Tiruppur, passed in I.A.No.893 of 1992, the third defendant has preferred an appeal in A.S.No.139 of 2001 before the learned Second Additional Judge, Coimbatore, who passed the judgment and decree in favour of the third defendant setting aside the judgment and decree passed in I.A.No.893 of 1992 and remanded the matter back to the trial Court for fresh disposal with some directions.
3. Aggrieved by the judgment and decree passed by the lower appellate Court, the plaintiff has preferred this Civil Miscellaneous Appeal.
4. Now the only point is to be decided in this appeal is whether the remand order passed by the lower appellate Court is in accordance with law.
5. The learned counsel appearing for the appellant would submit that the remand order passed by the lower appellate Court is not at all sustainable under law for the reason that there is no reason for remanding the matter back to the trial Court since when all the necessary documentary evidence and materials are available on record before the lower appellate court, it should have disposed of the appeal considering the fact that the suit is of the year 1988.
6. Per contra, the learned counsel appearing for the respondents would submit that the trial Court has not allotted the shares equally to all the shareholders in all the schedule properties and that too it has committed an error in allotting the entire 'A' schedule properties to the plaintiff and therefore considering all these aspects, the learned Second Additional District Judge has rightly set aside the judgment and decree of the trial Court passed in I.A.No.893 of 2002 and remanded the matter with directions for fresh disposal of the said application and in such circumstances, there is no necessity to interfere with the judgment and decree of the lower appellate Court.
7. Denying the submissions put forth by the learned counsel appearing for the respondents, the learned counsel appearing for the appellant would submit that the judgment and decree passed by the learned Second Additional District Judge is not sustainable under law in view of the well settled propositions of law.
8. In support of his contention, the counsel appearing for the appellant strongly rely on the principles laid down in the following decisions.
9. In P. PURUSHOTTAM REDDY AND ANOTHER VS. PRATAP STEELS LTD. ((2002) 2 SUPREME COURT CASES 686), the Apex Court held as follows:
"In cases where additional evidence is required to be taken in the event of any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23-A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these Rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati (AIR at p. 399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand dehors Rules 23 and 23-A. To wit, the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside and send the matter back for rewriting the judgment so as to protect the valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided."
10. In PALANISAMY @ UTHAYARPALAYANTHAN VS. APPARSAMY (2002-4-L.W.276), a Division Bench of this Court held as follows:
"As already seen, the report of the Commissioner and the evidence taken by him are part of the record in the case. Even if there is necessity of examining the Advocate Commissioner as a witness, it could be done by the appellate court under Order 41, Rule 28 CPC. In short, all the required material were very much available before the lower appellate court and that being so, it ought to have decided the appeal one way or the other and there is no justification for remanding the matter on that ground."
11. In M/S. SEKARAN REAL ESTATES, A PARTNERSHIP FIRM, BY MANAGING PARTNER K. CHANDRASEKARAN VS. PUNJAB NATIONAL BANK, MYLAPORE BRANCH, MYLAPORE, MADRAS-4 BY ITS MANAGER (2000(I)CTC 613), the learned Judge of this Court, who is also a party to this judgment, when he had an occasion to deal with the similar matter, observed as follows:
"It is clear from the above decisions as well as the provisions contained in Order 41, Rules 23 to 29, C.P.C., that duty is cast on the appellate court to find that the decree of the trial court should be set aside. Even the fact that there are some defects or infirmities in the reasoning of the trial court is not a ground for the appellate court to remand the same to the trial court. The appellate court should come to the clear conclusion that the findings of the trial court cannot be supported and must be set aside. Only in exceptional cases where the judgment of the trial court is wholly inintelligibile or incomprehensible that the appellate court can remand the suit for fresh trial. A reading of the judgment of the appellate court would show that it has not at all considered the judgment of the trial court not pointed out any infirmity or defect in the conclusion. Further, the learned appellate Judge has not borne in mind any of the principles mentioned above. A careful scrutiny of the judgment also shows that he never felt that the judgment of the trial court must be set aside or reversed. After allowing the amendment petition, the appellate court has simply directed the trial court to try the matter once again, after affording further opportunity to the parties, the directions contained in the order of remand are vague and too general in character. The fact that the lower appellate court has not considered the reasoning or merits of the decree of the trial court has not been disputed by the learned counsel for the respondent-Bank."
12. On a perusal of the judgment of the lower appellate Court, it is revealed that on the basis of both oral and documentary evidence available on record, the lower appellate Court came to the conclusion that the third defendant is also entitled to a share in 'A' Schedule property and in the sketch of the Commissioner also when it is made clear that as to how 'A' Schedule property could be partitioned and especially when the provisions under Order 41 Rules 23 to 29 of C.P.C. are not a bar to take further evidence or to appoint a Commissioner, if so necessary, and to try the appeal, as rightly pointed out by the learned counsel for the appellant, we are of the view that there is no necessity to remand the matter back to the trial Court and that the lower appellate Court itself can try the matter after taking further evidence as to the point to be decided and it can dispose of the appeal on merits and in accordance with law.
13. Further, the principles laid down in the above decisions are squarely be applicable to the case on hand.
14. In the light of the discussions held above, the judgment and decree passed by the lower appellate court have to be set aside. Accordingly, they are set aside.
15. In result, while the appeal is allowed, the learned Second Additional District Judge, Coimbatore, is directed to dispose of the appeal in A.S.No.139 of 2001 within three months on merits and in accordance with law from the date of receipt of a copy of this order. No costs.