Madras High Court
Rajamani vs Malleswari on 2 September, 2010
Author: B. Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.09.2010 C O R A M THE HONOURABLE MRS. JUSTICE B.RAJENDRAN C.M.A. No. 182 of 2007 Rajamani .. Appellant Versus 1. Malleswari 2. Sathiyapriya 3. Sagadevan .. Respondents Appeal under Order 43 Rule 1 (u) of CPC against the decree and judgment dated 16.10.2005 in A.S. No. 12 of 2005 on the file of Subordinate Judge, Madurantakam, Kancheepuram District setting aside the Decree and Judgment dated 10.01.2005 passed in O.S. No. 404 of 1997 on the file of the District Munsif, Madurantakam, Kancheepuram District. For Appellant : Mr. N. Nagu Sah For Respondents : Mr. T.P. Manoharan for RR1 to 3 JUDGMENT
The Plaintiff is the appellant in this appeal. The Plaintiff has filed the suit in O.S. No. 404 of 1997 for a decree directing the defendants to execute the sale deed for half share in the suit property after receiving the value tobe fixed by the Court.
2. According to the plaintiff, the first defendant is her brother and the second defendant is the daughter of the first defendant. The suit property was owned by Plaintiff and first defendant's mother Girija Ammal who died intestate leaving behind the plaintiff and defendants 1 and 2. Therefore, the plaintiff is entitled to half share and the first and second defendants put together have half share in the suit property left by Girija Ammal. But without the plaintiff's consent and knowledge, even though the plaintiff sought to purchase the half share of the defendants 1 and 2 under the right of pre-emption, the suit property was sold by them to the third defendant clandestinely. The third defendant not only purchased the half share owned by the defendants 1 and 2 but a larger extent of land and therefore the sale is invalid, hence, the suit was filed.
3. The first and second defendant remained exparte before the trial court. The third defendant/purchaser contested the suit stating that he is a bonafide purchaser for valuable consideration. It was further contended that the defendants 1 and 2 were in long possession and considering the same, patta was also granted in their favour for a larger extent of land. Therefore, the purchaser of the property by the third defendant, which is also covered by the patta issued in favour of the defendants 1 and 2 is valid and legal.
4. The trial court, after considering the oral and documentary evidence, decreed the suit as prayed for directing the defendants to execute the half share in the suit property in favour of the plaintiff. Aggrieved by the same, the third defendant filed A.S. No. 12 of 2005
5. During the pendency of the first appeal, the defendants 1 and 2, who remained exparte before the trial court, filed I.A. No. 209 of 2005 before the first appellate Court seeking to mark certain documents namely patta etc., to prove the extent of land sold by them to the dthird defendant. Thereafter, the plaintiff/respondent in the first appeal also filed I.A. No. 153 of 2006 for production of certain documents which are in her custody. The first appellate Court, taken up both I.A. No. 209 of 2005 and I.A. No. 153 of 2006 together and by a common judgment and decree dated 16.10.2005 found that there is a dispute between the plaintiff and the defendants with regard to the extent of land occupied by the plaintiff and the extent of land sold to the third defendant and remanded the matter back to the trial court for fresh consideration so as to enable the parties to adduce further evidence. Aggrieved against the said order dated 16.10.2005, the present Civil Miscellaneous Appeal is filed by the plaintiff.
6. The main ground of attack of the plaintiff/appellant is that the first appellate Court has got every right to permit the parties to let in evidence, enquire into the dispute in detail, appoint an advocate commissioner, if necessary, to call for the records, amend the pleadings etc., but ordinarily the first appellate Court should not take recourse to remand the matter to the trial court for considering the dispute afresh. Inasmuch as there is no specific finding rendered by the first appellate Court that the decree and judgment passed by the trial court is improper or irregular, as required under Order 41 Rule 23A of CPC, the order of remand is vitiated. Merely because both the plaintiff and the defendants 1 and 2 have sought to produce certain documents to prove their respective case, the first appellate Court ought not to have remanded the matter back to the trial court.
7. The learned counsel appearing for the respondents submitted that the order of remand is right since the crux of the issue for determination is whether the sale deed executed by the defendants 1 and 2 in favour of the third defendant was for a valuable consideration. Though no written statement was filed by the defendants 1 and 2 in the suit, before the first appellate Court, they have sought for marking certain documents. At the same time, the plaintiff himself has come forward with an application to produce certain documents. Under those circumstances, the first appellate Court has rightly remanded the matter to the trial court for determination of the issues involved in the case and prayed for dismissal of this appeal.
8. Heard both sides. The short point for consideration in this appeal iswhether the first appellate Court is right in remanding the matter to the trial court for fresh consideration of the issues in the absence of any finding to invalidate the decree and judgment passed by the trial court.
9. The plaintiff contended that the suit was filed for a direction to the defendants 1 and 2 to sell their respective share in the property under the right of pre-emption by contending that the plaintiff has got half share and the other half share was jointly owned by the defendants 1 and 2, but inspite of such a request made by the plaintiff, the defendants 2 and 3 have sold their share as well as a larger extent of the land to the third defendant. It was further contended that as against the grant of patta in favour of the defendants 1 and 2, the plaintiff has filed an appeal before the Revenue Divisional Officer, under those circumstances, the very sale in favour of the third defendant is invalid. Further, even in the suit, the defendants 1 and 2 remained exparte without contesting the suit and when the appeal filed by the third defendant was pending before the first appellate court, the defendants 1 and 2 conveniently filed I.A. No. 209 of 2005 for reception of additional documents under Order 41 Rule 27 of CPC to mark the sale deed of the year 1979, patta granted in favour of the defendants 1 and 2 for a larger extent of land and the legal heir certificate of the deceased Girija Ammal. Therefore, the plaintiff, who succeeded in the suit, also filed I.A. No. 153 of 2006 for production of documents namely patta issued in her favour to establish that she has got a right of pre-emption to purchase the half share owned by the defendants 1 and 2 since the said document was not produced by her before the court below. The Plaintiff would further contend that when the appeal was taken up by the first appellate Court, it was erroneously concluded that since both the parties have filed application for receptiion of additional documents and want to establish their respective case, without going into the merits of the case, the matter was remanded to the court below, especially, without rendering any finding as to whether the decree and judgment passed by the court below is valid or not.
10. The first appellate Court, in a case where re-trial was considered necessary, will have the powers to remand the matter to the trial court. But, the first appellate Court should give a finding that the decree and judgment of the court below is vitiated and thereafter remand the matter. In the absence of such a finding by the first appellate Court, the order of remand passed by the first appellate Court is liable to be set aside as it is against the provisions of Order 41 Rule 23-A of CPC.
11. In this connection, I am fortified by the decision of the Division Bench of this Court reported in (S. Shanmugam vs. S. Sundaram and others) (2005) 2 MLJ 552, it was held in para-12 as follows:-
"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 the 'A' schedule property could be partitioned and especially when the provisions of O.41, Rules 23 to 29 of CPC 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 appellate, 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.
12. It is also relevant to look into the decision of the Division Bench of this Court reported in (V. Munusamy (deceased) and others vs. M. Suguna) 2005 (1) CTC 107 wherein this Honourable Court held as follows:-
"7. Based on the averment in the affidavit filed in support of I.A. No. 7745 of 1987, filed under Section 4 (1) of the Act, the trial court, after satisfying itself, gave a finding that the petitioner therein/appellant herein is entitled to purchase the suit property on such finding satisfies one of the conditions prescribed under Section 4 (1) of the Act. No doubt, the trial court has not arrived the value of the share purchased by the transferee i.e., plaintiff. However, as rightly pointed out by the learned senior counsel for the appellant, on this ground, the lower appellate court set aside the order of the trial Court, including the finding of the entitlement of the appellant to purchase undivided share alienated by the family member to stranger alienee. As rightly argued, the principles underlying the exercise of the power of remand by the appellate Court has not been properly applied or exercised by the lower appellate Court. Courts have held that only in exceptional cases where the judgment of the trial Court is wholly unintelligible or incomprehensible, the appellate Court can remand the matter for fresh disposal. Order 41, Rule 23 give ample power to the lower appellate Court to decide all issues, including appointment of a Commission for local inspection, secure finding from the trial Court. Even if certain mistakes crept in in the order of the trial court, the same 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 and 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 case on hand, even if there is omission by the trial court regarding determination of the value of the share purchased by the plaintiff, in the light of the above discussion coupled with the mandate provided under Order 41 Rules 23 and 27, the appellate Court itself can ascertain the value either by appointment of a Commissioner or by getting a report from the trial Court. As said earlier, Section 4 91) of the Act gives option to any member of the family who is a co-sharer in respect of a dwelling house, a portion whereof has been transferred to a person who is not a member of such family, to purchase the share of such transferee if a suit for partition is filed by that transferee. On such option being exercised, the valuation of such share has to be determined. The crucial date for the purpose of fixing the valuation of the share of such transferee is the date when option to purchase in accordance with Section 4 of the Act is exercised by the defendant co-sharer.
13. In both the decisions of the Division Bench mentioned above, presided by Hon'ble Justice P. Sathasivam, as he then was, it was categorically held that the First Appellate Court has got even right to take further evidence, or appoint an advocate commissinoer, if so necessary and there is no necessity for remanding the matter back to the trial court as the lower Appellate Court itself can try the matter and dispose of the appeal on merits and in accordance with law.
14. In the decision reported in (Municipal Corporation, Hyderabad vs. Sunder Singh) (2008) 8 SCC 485 it was held by the Honourable Supreme Court that an order of remand should not be passed by the First Appellate Court as a matter of course. In fact, the Court should be slow in exercising the discretionary powers conferred under Rule 23. Further, before passing an order of remand, the first Appellate Court has to record reasons that re-trial was necessary and also give finding that the decree and judgment passed by the trial Court is liable to be reversed and only then, an order of remand should be passed. In Para Nos. 17, 18, 32, 33 and 34, it was held as follows:-
17. Order 41 Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court.
18. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order 41 Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.
32. A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order 41 Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order 41 Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence.
33. Order 41 Rule 23-A of the Code of Civil Procedure is also not attracted. The High Court had not arrived at a finding that a retrial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order 41 Rule 23 of the Code.
34. An order of remand cannot be passed on ipse dixit of the court. The provisions of Order 2 Rule 2 of the Code of Civil Procedure as also Section 11 thereof could be invoked, provided of course the conditions precedent therefor were satisfied. We may not have to deal with the legal position obtaining in this behalf as the question has recently been dealt with by this Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas."
15. In (Bhuvaneswari vs. Saraswathi Ammal) (2005) 3 MLJ 626, the Division Bench of this Court in para 3, held as follows:-
"3. We went through the judgment of the lower appellate Court. As already noted, enough oral and documentary evidence had been let in on the side of the plaintiff as well as on the side of the defendant. An order of remand cannot be for the mere purpose of remanding a proceeding to the lower Court. It is governed by the provisions of the Code of Procedure, commencing from Order 41 Rule 22 onwards. The appellate Judge's view that in order to enable the parties to have the suit properties identified, an Advocate Commissioner had to be appointed and for that purpose the suit must be remanded to the trial court, in our considered opinion, is not warranted on the facts of the case. If it is possible for the appellate Court to evaluate the evidence made available on record and come to its own conclusion one way or the other, then it is open to the lower appellate Court to come to the aid of the parties for filling up a lacuna which is found wanting in the recoreds.
16. In this connection, I am also fortified by the decision rendered by the Honourable Supreme Court reported in (P. Purushottam Reddy and another vs. Pratap Steels Ltd) (2002) 2 scc 686 wherein in para-10 and 11, it was stated thus:-
"10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23-A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before the 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. 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 the same and send the matter back for rewriting the judgment so as to protect 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.
11. In the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary. Neither Rule 23 nor Rule 23-A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule 25. So far as the objection as to maintainability of the suit for failure of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix A CPC is concerned, the High Court has itself found that there was no specific plea taken in the written statement. The question of framing an issue did not, therefore, arise. However, the plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to clause (c) of Section 16 of the Specific Relief Act, 1963 is concerned, the pleadings are there as they were and the question of improving upon the pleadings does not arise inasmuch as neither any of the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial court. Nevertheless, the parties and the trial court were very much alive to the issue whether Section 16(c) of the Specific Relief Act was complied with or not and the contentions advanced by the parties in this regard were also adjudicated upon. The High Court was to examine whether such finding of the trial court was sustainable or not in law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material inasmuch as the High Court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration and decision."
17. 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 a learned single Judge in para No.4, held 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 unintelligible or incomprehensible that the apprllate 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 nor pointed out 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.
18. In (Kannathal and four others vs. Arulmighu Kanniammal Karuppasamy Thirukoil, Pothanur Chettipalayam, Coimbatore, rep. by its Executive Officer and another) 2007 (2) CTC 49, a learned single Judge of this Honourable Court held in para No. 15 and 17 as follows:-
"15. It is also settled law that if the issues arising in the suit could be decided on the evidence available on record, the lower Appellate Court itself should decide the case on merits without unnecessarily ordering remand. A perusal of the pleadings in the case shows that all the necessary pleadings are available on record. Even if the Lower Appellate Court was of the opinion that it was necessary to give an opportunity to the plaintiff to amend the pleadings, that opportunity could have been given in the First Appellate Court itself and for that purpose, the remand is not needed.
16......
17. In the light of the law laid down by the Apex Court in the decisions reported in Ishwardas vs. State of Madhya Pradesh and others, AIR 1979 SC 55 and P. Purusottam Reddy and another vs. Pratap Steels Limited, 2002 (2) ctc 686, this Court is of the considered view that the Lower Appellate Court has committed an error of law in remanding the matter only for the purpose of affording an opportunity to the plaintiff to amend the pleadings and to adduce additional evidence. As laid down by the Apex Court it is not proper for the Appellate Court to remand the case to enable the parties to make good their lapse.
19. In (Sujatha vs. Vijay Anand and another) (2007) 4 MLJ 447, a learned single Judge of this Court in Para No.15 and 16, held as follows:-
"15. In the case on hand, the learned District Judge has not reversed or set aside the finding of the trial court. It is only to give opportunity to the plaintiffs to prove the Will dated 12.08.1982, the lower Appellate Court has remanded that suit to the trial court. The procedure adopted by the learned District Judge is not correct. The District Judge himself got jurisdiction and powers under Order 41 and Section 151 of C.P.C.
16. I am of the opinion that the order of remand of the suit cannot be sustained and therefore, the judgment and decree of the learned District Judge remanding the suit to the trial court are set aside. The learned District Judge is directed to take the first appeal and I.A. No. 53 of 2001 on its file and give opportunity to both parties with regard to the proof of the said document dated 12.08.1982 and dispose of the first appeal on merits.
20. In the aforesaid decisions, it was categorically held that order of remand should not be passed as a matter of course and without giving a finding as to how the decree and judgment of the trial court is perverse, illegal, especially, after amendment to Order 41 Rule 23A of CPC. In the case on hand, the first appellate Court remanded the matter back to the trial court for fresh consideration summarily on the only ground that the plaintiff and defendants 1 and 2 have filed interim applications for reception of additional documents and the said documents have to be marked before the. No finding has been given by the first appellate Court as to how the decree and judgment passed by the trial court is vitiated warranting it to pass an order of remand. Under those circumstances, the Judgment and Decree passed by the first appellate Court is set aside. The matter is remanded to the first appellate Court for disposing of the first appeal on merits and in accordance with law after giving sufficient opportunity to both sides.
21. In the result, the civil miscellaneous petition is allowed. No costs.
02-09-2010 rsh Index : Yes Internet : Yes To The Subordinate Judge Sub Court Thiruvarur B. RAJENDRAN, J rsh CMA No. 182 of 2007 02.09.2010