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2006 DIGILAW 3066 (MAD)

Kanniammal v. Raniammal & Another

2006-11-13

K.MOHAN RAM

body2006
Judgment :- (Appeal under Order XLIII Rule 1(u) of the Civil Procedure Code against the judgment and decree dated 4.12.2004 made in A.S.No.1 of 1999 on the file of the Subordinate Court, Arni.) Plaintiff in O.S.No.453 of 1996 on the file of the Principal District Munsif, Arni has filed the above appeal challenging the judgment and decree of remand dated 4.12.2004 passed in A.S.No.1 of 1999 on the file of the Subordinate Court, Arni. 2. For convenience sake, the parties are referred to as arrayed in the suit. 3. The plaintiff filed the suit for declaration and injunction. The plaintiff and the first defendant are sisters. The second defendant is the husband of the first defendant. According to the plaintiff, the suit properties originally belonged to one Narayana Gounder - the father of the plaintiff and the first defendant. Narayana Gounder and his wife -one Seethalakshmi Ammal executed a Will under ExA1 dated 23.7.1976 in favour of the plaintiff, the first defendant and their other daughter one Saroja Ammal. Thereafter, Narayana Gounder again executed another Will under ExA2 dated 23.5.1993 in favour of the plaintiff and the first defendant. On 17.3.1995, Narayana Gounder executed a registered settlement deed under ExA6 (also marked as ExB1) in favour of the first defendant in respect of item Nos.4 and 7 of the suit properties. On 18.9.1995, Narayana Gounder revoked the Wills under ExA1 and ExA2 and on the same day, executed a sale deed in favour of the plaintiff under ExA3 in respect of the entire suit properties. On 27.9.1995, Narayana Gounder executed a settlement deed in favour of the first defendant in respect of item NO.3 of the suit properties. According to the plaintiff, ExA6 and ExB4 dated 17.3.1995 and 29.9.1995 respectively have been obtained by defendants 1 and 2 by exercising fraud on Narayana Gounder and taking advantage of those documents, they are trying to disturb the possession and enjoyment of the plaintiff, which has necessitated filing of the suit. 4. The suit was contested by filing a detailed written statement wherein the defendants admitted that the suit properties belong to Narayana Gounder. Seethalakshmi Ammal has no right in the suit properties. The cancellation of the Wills dated 23.7.1976 and 23.5.1993 is also admitted. 4. The suit was contested by filing a detailed written statement wherein the defendants admitted that the suit properties belong to Narayana Gounder. Seethalakshmi Ammal has no right in the suit properties. The cancellation of the Wills dated 23.7.1976 and 23.5.1993 is also admitted. Narayana Gounder was taken care of properly by the defendants and was very affectionate towards the defendants and it is false to allege that Narayana Gounder was coerced to execute the settlement deeds in respect of the suit properties. There was no necessity for Narayana Gounder to sell the properties and the sale deed executed by Narayana Gounder in favour of the plaintiff is not supported by consideration and the sale deed has been obtained by the plaintiff under undue influence exercised by the plaintiff. The possession was not handed over to the plaintiff under the sale deed. The settlement deeds dated 17.3.1995, 27.9.1995 and 29.9.1995 have been executed by Narayana Gounder in favour of the first defendant out of love and affection and they have been acted upon and the possession has been handed over to the first defendant. Pursuant thereto, the defendants are in possession and enjoyment of the same. Apart from the settlement deeds, Narayana Gounder had executed a Will dated 9.10.1995 on his own will and volition in favour of the first defendant in respect of some of the suit properties. Even in 1980, there was a family arrangement, under which, the properties were allotted to the plaintiff and the defendants and patta has also been issued under the UDR scheme. In respect of the properties retained by Narayana Gounder, patta has been issued in his favour and only those properties have been given to the first defendant. Even though there was a family arrangement in 1980, to avoid unnecessary problems in future, the settlement deeds and the Wills have been executed by Narayana Gounder. With an intention to deprive the defendants of the properties, the plaintiff had set up one Sekar, who is the son of their other sister - Saroja to file O.S.No.495 of 1996 for partition and that suit is being conducted actually by the plaintiff. On the above pleadings, the defendants sought for dismissal of the suit. 5. With an intention to deprive the defendants of the properties, the plaintiff had set up one Sekar, who is the son of their other sister - Saroja to file O.S.No.495 of 1996 for partition and that suit is being conducted actually by the plaintiff. On the above pleadings, the defendants sought for dismissal of the suit. 5. The Trial Court, after framing proper issues, took up the suit for trial and during trial, on the side of the plaintiff, PWS 1 to 4 have been examined and ExA1 to ExA17 have been marked. On the side of the defendants, DWS 1 to 5 have been examined and EXB1 to Ex25 have been marked. On a consideration of the oral and documentary evidence adduced in the suit, the Trial Court decreed the suit. 6. Being aggrieved by that, the defendants filed an appeal in A.S.No.1 of 1999 before the Subordinate Court, Arni. The Subordinate Court set aside the judgment and decree of the Trial Court and remanded the suit for retrial. Being aggrieved by that, the civil miscellaneous appeal has been filed. 7. Heard both. 8. Learned counsel for the appellant submitted that the Lower Appellate Court has not kept in mind the well settled principles for remanding a suit for retrial. He further submitted that the Lower Appellate Court remanded the suit for retrial on the following grounds: “a. One Sakuntala Ammal - the sister of the second defendant, who is alleged to be in possession of some of the suit properties has not been examined; b. The first defendant - Rani Ammal has not been examined whereas her husband - the second defendant has been examined as DW1; c. Since the first defendant filed an application under Order XLI Rule 27 of the Civil Procedure Code to receive additional documents, the order of remand is necessary; d. To enable the first defendant to produce additional documents; e. ExA14, ExA15 and Ex16 should have been marked through the persons, who issued them. As they have not been examined, they should be examined; f. The Trial Court did not look into ExA6 properly. To enable the defendants to examine Sakuntala, who is alleged to be in possession and enjoyment of the properties; and g. To examine the first defendant and the revenue officials and also the jewel merchant.” 9. As they have not been examined, they should be examined; f. The Trial Court did not look into ExA6 properly. To enable the defendants to examine Sakuntala, who is alleged to be in possession and enjoyment of the properties; and g. To examine the first defendant and the revenue officials and also the jewel merchant.” 9. Learned counsel for the appellant submitted that on the above said reasons, an order of remand should not have been made. Learned counsel relied upon the following decisions in support of his submissions: “i. Purushottam Reddy Vs. Pratap Steels Limited (2002 (2) MLJ 99 (SC)) wherein the Apex Court in paragraph 10 observed as follows: In cases where additional evidence is required to be taken in the event of anyone of the Clauses of Sub.Rule (1) of Rule 27 being attracted, such additional evidence, oral and 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 O.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 Vs. Sushila Mahendra Nanavati 66 Bom.L.R. 681 : AIR 1965 SC 364 : (1965) 1 SCJ 788, 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 de hors Rules 23 and 23A. It is only in exceptional cases where the Court may now exercise the power of remand de hors Rules 23 and 23A. 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 O.20, Rule 3 or O.41 Rule 13, 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. ii. 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 (1) CTC 613 ) wherein a learned Judge of this Court observed as follows: It is clear from the above decisions as well as the provisions contained in Order 41, Rules 23 to 29, CPC, 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 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. 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. And iii. Bhuvaneswari Vs. Saraswathi Ammal ( 2005 (3) MLJ 626 ) wherein a Division Bench of this Court has observed as follows: 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 not 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 records. 10. A reading of the above decisions clearly shows that even where additional evidence is required to be taken, such additional evidence, both oral and documentary, can be 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 and it is only in exceptional cases, the remand can be ordered. If the Appellate Court finds that the judgment under appeal has not been disposed of satisfactorily in the manner required under Order XX Rule 3 or Order XLI Rule 31 of the Civil Procedure Code and hence, it is no judgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect the valuable rights of the parties. The Appellate Court should be circumspect in ordering the remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 of Civil Procedure Code. The Appellate Court should be circumspect in ordering the remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 of Civil Procedure Code. Further, 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 not open to the Lower Appellate Court to come to the aid of the parties for filling up the lacuna, which is found wanting in the records. A duty is cast on the Appellate Court under the provisions contained in Order XLI Rules 23 to 29 of the Civil Procedure Code 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. 11. If the judgment of the Lower Appellate Court is tested in the light of the above said principles laid down by the Apex Court as well as this Court, it could be easily seen that the Lower Appellate Court has not recorded a finding that the decree of the Trial Court should be set aside. As pointed out above, the Lower Appellate Court has set aside the judgment and decree of the Trial Court only to remand the suit so as to enable the defendants to fill up the lacuna in their case, which is not permissible in law. The Lower Appellate Court has not come to the conclusion that the oral and documentary evidence already available on record are not sufficient to render a judgment in the case. Even if the Lower Appellate Court found any justification for receiving the additional documents sought to be produced by the defendants, the same could have been received if the conditions contemplated in Order XLI Rule 27 of the Civil Procedure Code are satisfied. Instead of adopting that course, the Lower Appellate Court had erroneously ordered remand just to enable the defendants to fill up the lacuna in their case, which is also, as pointed out earlier, is not permissible. Instead of adopting that course, the Lower Appellate Court had erroneously ordered remand just to enable the defendants to fill up the lacuna in their case, which is also, as pointed out earlier, is not permissible. Therefore, the contentions of the learned counsel for the appellant are acceptable. 12. Learned counsel for the respondents, except repeating the reasons recorded by the Lower Appellate Court for remanding the suit, is unable to counter the legal submissions made by the learned counsel for the appellant. Hence, this Court is of the considered view that the order of remand is totally unwarranted and uncalled for and the Lower Appellate Court ought to have decided the appeal on merits with the evidence available on record. 13. For the said reasons, the judgment and decree of the Lower Appellate Court are set aside. The civil miscellaneous appeal is allowed. No costs. Consequently, the above CMP is dismissed. The Lower Appellate Court is directed to dispose of the appeal in A.S.No.1 of 1999 on its own merits, after evaluating the entire evidence available on record in a manner known to law, as expeditiously as possible, preferably within a period of four months from the date of receipt of a copy of this order.