Madras High Court
Lakshmi vs Muniyandi on 29 October, 2007
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29/10/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD)Nos.788 of 2006 C.M.A.(MD)Nos.789 of 2006 and M.P.(MD)Nos.1 and 1 of 2006 C.M.A.(MD)No.788 of 2006 Lakshmi ... Appellant Vs Muniyandi ... Respondent C.M.A.(MD)No.789 of 2006 1.Marutha Muthu 2.Lakshmi ... Appellants Vs 1.Muniyandi 2.Sivapakiayam 3.Balasubramanian 4.Mariammal ... Respondents Prayer in C.M.A.(MD)No.788 of 2006: Appeal filed under Order 43 Rule 1 (v) of the Code of Civil Procedure, against the judgment and decree passed in A.S.No.98 of 2005 on the file of the Additional Sub Court, Thanjavur, dated 10.03.2006 in reversing the judgment and decree passed in O.S.No.164 of 2000 on the file of the District Munsif Court, Thanjavur, dated 05.08.2005. Prayer in C.M.A.(MD)No.789 of 2006: Appeal filed under Order 43 Rule 1 (v) of the Code of Civil Procedure, against the judgment and decree passed in A.S.No.97 of 2005 on the file of the Additional Sub Court, Thanjavur, dated 10.03.2006 in reversing the judgment and decree passed in O.S.No.384 of 2004 on the file of the District Munsif Court, Thanjavur, dated 05.08.2005. !For Appellant ... Mr.K.Srinivasan ^For Respondents ... Mr.V.Chandrasekar for R.1 Mr.A.Anbalagan for R.2 to R.4 :COMMON JUDGMENT
C.M.A.(MD)No.788 of 2006 is focussed as against the judgment and decree passed in A.S.No.98 of 2005 on the file of the Additional Sub Court, Thanjavur, dated 10.03.2006 in reversing the judgment and decree passed in O.S.No.164 of 2000 on the file of the District Munsif Court, Thanjavur, dated 05.08.2005.
2. C.M.A.(MD)No.789 of 2006 is focussed as against the judgment and decree passed in A.S.No.97 of 2005 on the file of the Additional Sub Court, Thanjavur, dated 10.03.2006 in reversing the judgment and decree passed in O.S.No.384 of 2004 on the file of the District Munsif Court, Thanjavur, dated 05.08.2005.
3. A re'sume of facts absolutely necessary for the disposal of these two appeals would run thus:
O.S.No.164 of 2000 was filed by Muniyandi as against Lakshmi on the file of the learned District Munsif, Thanjavur for permanent injunction in respect of the suit property described in the schedule of the plaint.
4. While so, O.S.No.384 of 2004 was filed by the said Lakshmi and one Marutha Muthu as against the said Muniyandi and three others in the same Court for partition in respect of large area including the one covered under the earlier suit.
5. The trial Court after conducting the joint trial, delivered the common judgment in both the matters, vide judgment and decree dated 05.08.2005.
6. Being aggrieved by and dissatisfied with, the said judgment, A.S.No.97 of 2005 was filed by Marutha Muthu and Lakshmi and A.S.No.98 of 2005 was filed by Lakshmi.
7. The appellate Court by way of separate judgments in A.S.No.97 of 2005 and 98 of 2005 on 10.03.2006, remanded both the matters to the trial Court for taking additional evidence and dispose of the matters.
8. Being aggrieved by and dissatisfied with, such orders of remand, Lakshmi and Marutha Muthu filed the aforesaid two Civil Miscellaneous Appeals, on the main ground that the appellate Court was not justified in remanding the matters to the trial Court.
9. Heard both sides in entirety.
10. The point for consideration is as to whether the appellate Court was justified in remanding the matter for taking additional evidence and for pronouncing judgments afresh by the trial Court.
11. The learned Counsel for the respondents herein would develop his argument to the effect that the trial Court clearly and categorically gave findings to the effect that Muniyandi is entitled to injunction in O.S.No.164 of 2000, considering his possession as well as the title over it; and in the suit for partition, the 'A' Schedule property was correctly deleted from partition.
12. The learned Advocates on both sides would draw the attention of this Court to paragraph Nos.11, 12 and 15 of the judgment of the appellate Court in A.S.No.97 of 2005 and submit that the appellate Court even though correctly set out the facts, arrived at a wrong conclusion.
13. The perusal of the judgment of the appellate Court would reveal that one Valliammal happened to the the original owner and it is the contention of Lakshmi and others that during the life time of Valliammal, her properties were orally partitioned and thereupon, the sharers started enjoying it. Whereas the learned Counsel for the respondents (Muniyandi and others) would contend that during her life time, she executed the sale deed and effected other alienations and that there was no oral partition.
14. The first appellate Court in paragraph No.15, clearly and categorically without mincing words, expressed her desire to have more evidence for clarity.
15. I am of the considered opinion that the appellate Judge has a discretion to have more evidence before the appellate Court which cannot be found fault with and even the High Court cannot give direction to the appellate Judge not to have more evidence so as to satisfy its own consciousness to arrive at a conclusion. Once the appellate Court considered that more evidence is required, as per the trite proposition of law, the appellate Court should have entertained additional evidence instead of remanding the matter.
16. There are catena of decisions which posit the proposition that as per the provisions of the Code of Civil Procedure, more specifically Order 41 Rule 23 as well as 23-A that there should not be indiscriminate remanding of the matter.
17. The perusal of the records including the judgment of the first appellate Court as well as the trial Court would demonstrate that it is not the case where the evidence was adduced totally in a wrong and absurd manner or the judgment was rendered based on inadmissible evidence in toto, warranting fresh evidence, but it is a case even as per the findings of the first appellate Court, certain additional evidence relating to actual partition and enjoyment of the specific areas, is warranted.
18. In such a case, the appellate Court could have very well entertained additional evidence by itself or given direction to the trial Court to take additional evidence and forward it to the appellate Court so as to enable the appellate Court itself to deal with the matter and pronounce judgment on merits.
19. The learned Counsel for the appellants placed reliance on the following decisions:
(i) Sujatha v. Vijay Anand reported in (2007) 4 MLJ 447.
(ii) S.Shanmugham v. S.Sundaram and 4 others reported in 2005-3-L.W.-366.
20. The learned Counsel for the appellants would submit that the appellate Court could have very well entertained additional evidence instead of passing such remand orders.
21. The learned Counsel for the respondents would convincingly and correctly submit that the appellate Court already exercised its discretion that the evidence has to be recorded by the trial Court and in such a case, this Court may not insist for the appellate Court to record the evidence and the trial Court could record the additional evidence and forward the same to the appellate Court which could finally decide the appeal.
22. Relating to the discretionary power of the first appellate Court concerned, either it could entertain the evidence itself or direct the trial Court to take evidence as per Order 41 Rule 25 C.P.C, on specific issues/points and after getting such evidence, it could adjudicate the appeals.
23. In view of my discussion supra, I am of the considered opinion that the judgments of the first appellate Court are liable to be set aside and the following direction is given:
24. The appellate Court shall restore the appeals on its file in the original numbers themselves and issue direction to the trial Court to record the additional evidence only on certain aspects as found set out in paragraph No.15 of the judgment of the first appellate Court. The trial Court after taking evidence, is bound to submit the evidence to the first appellate Court whereupon, the appellate Court shall decide those appeals on merits after hearing both the sides.
25. In the result, both the appeals are disposed of. Consequently, connected M.P.(MD)Nos.1 and 1 of 2006 are closed. However, the parties are ordered to bear their respective costs.
rsb To
1.The Additional Sub Court, Thanjavur.
2.The District Munsif Court, Thanjavur.