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1996 DIGILAW 869 (MAD)

Andi Janaki v. S. Chelliah Nadar

1996-08-22

A.R.LAKSHMANAN

body1996
Judgment : Heard Mr.Peppin Fernando and Mr. S.Krishnaswamy for the respective parties. .2. According to the appellant, the suit property belongs to her and that she is in peaceful possession and enjoyment of the same and the respondent claimed that he is a cultivating tenant of the suit property. According to the appellant, the respondent had not produced any document to substantiate his claim. The trial court dismissed the suit. The appellate court reversed the finding of the lower court and allowed the appeal and remanded the matter to the lower court. Aggrieved by the order of remand the appellant has filed the civil miscellaneous appeal in this Court. .3. Mr.Peppin Fernando, learned counsel for the appellant contended that the lower appellate court is wrong in its judgment that there is no possibility of getting the documents for the lease or payment of patta. When the respondent/plaintiff comes forward with a bare injunction, it is his duty to prove the origin of his possession. But, in this case it is contended on behalf of the appellant that the respondent has not proved that he had taken the property on lease. It is also pointed out that the name of the respondent does not find a place in the record of tenancy. The lower appellate court also failed to notice that in Ex.P.38, No.2 account does not contain the name of the respondent in column 6(a) or 6(b). Therefore, the contention of learned counsel for the appellant that the absence of entries in the record of tenancy -Part II Account would clearly go to show that the respondent is not a cultivating tenant of the suit property. The lower appellate court, in my opinion, is not correct in holding that the 1st defendant could not have enjoyed the land because of old age, but, it failed to note that as far as the landlord is concerned, she can enjoy and be in possession of the property without contributing physical labour either of her or that of the members of her family. The lower appellate court under such circumstances ought to have used the same yardstick for cultivating tenant as well. Hence the observation of the lower appellate court that age is a bar for enjoying the land cannot at all be accepted. The lower appellate court under such circumstances ought to have used the same yardstick for cultivating tenant as well. Hence the observation of the lower appellate court that age is a bar for enjoying the land cannot at all be accepted. Likewise the appellate court is wrong in its observation and conclusion that the appellant ought to have been examined in court or through commission. It is well settled that court cannot compel a party to be a witness. According to the appellant, he has let in sufficient oral and documentary evidence to disprove the case of the respondent. If that is so, the contention of the lower appellate court that the appellant ought to have been examined as a witness cannot at all be accepted. It is for the appellant to decide what are the evidence to be let in and when the appellant has satisfied with the available oral and documentary evidence, the lower appellate court cannot say that she must be examined either in court or through commission. The mere fact that the respondent contents that he and the defendant alone were present at the time of the alleged lease cannot be a ground for the appellant to go into the witness box. The observation of the lower appellate court that the party must go into the witness box is not correct. It is pointed out by learned counsel for the appellant coupled with other oral and documentary evidence will be sufficient to destroy the case of the respondent. It is also pointed out that the evidence of D.W.5, who speaks about the variety of paddy raised in the suit property has not been considered at all or discussed by the appellate court. Likewise, it is also to be noticed that the report of the Commissioner, Ex.C.l was not considered by the lower appellate court. There is also no pleading that the plaintiff had installed an oil engine in the suit property and any amount of evidence that the oil engine was so installed can never be accepted at all. Such settled principles of law had not been taken note of by the lower appellate court. It is also significant that the respondent did not file any objection to the commissioner’s report. Such settled principles of law had not been taken note of by the lower appellate court. It is also significant that the respondent did not file any objection to the commissioner’s report. As rightly submitted by learned counsel for the appellant, the lower appellate court has not discussed the oral and documentary evidence let in by the appellant which had demonstrated that the evidence about the variety of paddy and alleged to have been raised by the respondent. In my opinion the lower appellate court ought not to have remanded the matter to the lower court. As already pointed out, the lower appellate court is wrong in its observation that the appellant should be examined either in court or by commission. .4. It is well settled that 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 or omissions made by the first court could be corrected by the appellate court. A Division Bench in Visalakshi v. Danalakshmi Ammal, (1989)2 LW. 414 has pointed out that the unsatisfactory consideration of an issue by the first court and the 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. The court has also pointed that 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. In the instant case, the lower appellate court has passed the order of remand as a matter of course on the points mentioned above in the earlier part of this order. The lacunae pointed out by the lower appellate court in my opinion can be rectified by the appellate court itself. Learned counsel for the respondent contended that the lower appellate court has remanded the matter in the interests of justice and, therefore, the order of remand ordered by the lower appellate court should not be interfered with. The lacunae pointed out by the lower appellate court in my opinion can be rectified by the appellate court itself. Learned counsel for the respondent contended that the lower appellate court has remanded the matter in the interests of justice and, therefore, the order of remand ordered by the lower appellate court should not be interfered with. In my opinion, the expression ‘interests of justice’ does not widen the power of the appellate court to remand the matter in the sense that irrespective whether it comes to a conclusion that the judgment and decree of the appellate court are liable to be reversed or set aside or not if the appellate court is of the opinion that the interests of justice required that there should be a fresh trial, it can remand the suit for fresh disposal. Learned counsel for the respondent has not cited any authority to support his contention. 5. It has been held in Sowdammal alias Sundarammal v. Veerammal, (1970)1 M.L.J. 205 : 82 LW. 625 that generally speaking, only where it is not possible to apply O.41, Rules 24 to 27, C.P.C., a remand should be resorted to under O.41, Rule 23, C.P.C. It should be noted further that before remanding the case O.41, Rule 23 itself contemplates that the appellate court should reverse or set aside the decree. In my opinion this provision will not apply to a case where the trial court has considered the entire evidence but in the opinion of the appellate court a different view ought to be taken of the evidence and the appellate court is in a position to give a finding on the evidence on record. In such a case it is the duty of the appellate court to consider the matter as it stands and give its own finding in reversal of the finding of the trial court.. The provisions of 0.41, Rule 27, C.P.C., therefore, in my opinion, should be strictly applied by the appellate court. This Court also in Kuppurathnam and others v. Munirathinam, (1993)1 M.L.J. 507 while dealing with the similar case held that there cannot be any remand merely for the purpose of affording an opportunity to a party to let in additional evidence. The order of remand of the lower appellate court, therefore, is wrong in the circumstances of the case stated above. The order of remand of the lower appellate court, therefore, is wrong in the circumstances of the case stated above. I, therefore, set aside the judgment and decree of the District Court, Nagercoil in A.S.No.38 of 1989 dated 37. 1989 and remand the matter to the District Court, Nagercoil for fresh consideration of the entire matter on the evidence already let in both parties. Both parties are not permitted to let in fresh evidence. This appeal being of the year of 1989, the District Court is directed to dispose of the appeal within three months from the date of receipt of a copy of the order and records from this Court. However, there will be no order as to costs.