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2007 DIGILAW 945 (MAD)

E. P. M. Naina Mohamed v. A. Abdul Azeez

2007-03-15

K.VENKATARAMAN

body2007
Judgment :- The respondent in A.S.No.45 of 2005 on the file of the Subordinate Judge, Tiruvarur is the appellant in this appeal. The appellant therein is the respondent in the present appeal. 2. The respondent herein has filed the suit in O.S.No.109 of 1995 originally on the file of the District Munsif, Mayiladuthurai for declaration of title and for possession of the suit property. Later, due to bifurcation of the District, the suit was transferred to the file of the District Munsif, Nannilam and renumbered as O.S.No.117 of 1999. The appellant herein being the defendant in the said suit filed written statement denying the averments made in the plaint. After considering the entire evidence on record, the learned District Munsif, Nannilam (hereinafter referred as the "Trial Court") dismissed the suit holding that the respondent herein is not entitled for the relief of declaration of title and for possession. The respondent herein therefore filed an appeal before the Subordinate Judge, Tiruvarur in A.S.No.45 of 2005. During the pendency of the said appeal, the respondent herein has filed two applications in I.A.Nos.46 and 48 of 2006, one to receive additional documents and the other to amend the plaint with respect to the northern boundary described in the schedule to the plaint. The learned Subordinate Judge, Tiruvarur (hereinafter referred to as "the Appellate Court") heard the arguments in both the appeal and the applications referred to above and by judgment and decree dated 8. 2006, allowed both the applications filed by the respondent herein for reception of additional documents and for amendment of the plaint and further allowed the appeal and remanded the matter to the Trial Court for fresh trial. Challenging the said judgment and decree, the respondent in the said appeal has preferred the present Civil Miscellaneous Appeal. 3. 2006, allowed both the applications filed by the respondent herein for reception of additional documents and for amendment of the plaint and further allowed the appeal and remanded the matter to the Trial Court for fresh trial. Challenging the said judgment and decree, the respondent in the said appeal has preferred the present Civil Miscellaneous Appeal. 3. The learned counsel appearing for the appellant contended:- .(a) that the Appellate Court without setting aside the judgment and decree of the Trial Court has merely remanded the matter to the Trial Court for deciding it afresh; .(b) that the Appellate Court did not assign any reason for remanding the matter except saying that since the applications for reception of additional documents and amendment of the plaint are allowed, the matter is remanded to the Trial Court for fresh disposal; and .(c) that the Appellate Court should have decided the matter on merits, if necessary, taking further evidence and hence, ought not to have remanded the matter to the Trial Court. 4. Per contra, the learned counsel appearing for the respondent contended that since certain documents, which could not be filed before the Trial Court, have been filed before the Appellate Court and the applications filed by the respondent for reception of additional documents has been allowed by the Appellate Court along with the application for amendment of plaint, it has necessitated the Appellate Court to remand the matter for de novo trial by the Trial Judge himself. Thus, according to the learned counsel, the order of remand is perfectly in order. 5. I have heard Mr. K.A. Basheer Ahamed, the learned counsel for the appearing for the appellant and Mr. P. Gopalan, the learned counsel appearing for the respondent. 6. It is true that the respondent herein has filed two applications, one in I.A.No.46 of 2006 and another in I.A.No.48 of 2006 for reception of documents and for amendment of the plaint respectively. The learned Appellate Judge having allowed those applications ought to have decided the appeal on merits considering the additional documents, permitting the appellant herein to file additional written statement and permitting both the parties to let in oral evidence. The Appellate Court has ample power under Order 41 Rule 27 C.P.C. to examine any witness for the purpose of production of document or for any other substantial cause. The Appellate Court has ample power under Order 41 Rule 27 C.P.C. to examine any witness for the purpose of production of document or for any other substantial cause. Thus, the Appellate Court after entertaining the applications for reception of additional documents and for amendment of the plaint ought to have, if necessary, permitted both the parties to let in oral or documentary evidence and should have decided the matter by itself without remanding the same. Further, the Appellate Court may either take such evidence or could have directed the Trial Court to take evidence and send the same to it for deciding the appeal as provided under Order 41 Rule 28 C.P.C. But, unfortunately, the Appellate Court has not followed either of the two modes as provided under Order 41 Rule 27 and 28 C.P.C. The learned Appellate Court simply remanded the matter to the Trial Court stating that the applications for reception of additional documents and for amendment of the plaint have been allowed. 7. In this connection, the learned counsel appearing for the appellant cited a decision reported in 1988 (I) M.L.J. 501 (GOVINDARAJA VANNIAR v. THIRUSANGU VANNIAR) wherein the Division Bench of this Court, relying on the decision reported in AIR 1954 MADRAS 783 (MIDDI RAMAKRISHNA RAO v. MIDDI RANGAYYA) has held that the appellant cannot be given an opportunity to fill the gaps in evidence by remanding the matter. Their Lordships have referred paragraphs 4 and 5 of the judgment reported in AIR 1954 MADRAS 783 which is relevant for the purpose of this case and the same is extracted hereunder:- "This is not within the scope of remand under Order 41, Rule 23. It is quite true that under the Madras Amendment of Order 41, Rule 23 the discretion of the Court is unfettered; but that discretion of the Court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a Court of Appeal. The Appellate Court should not however rashly and without sufficient cause, order retrial in any case in which this can possibly be avoided; a remand order should not thus be made under this rule in a case which could efficiently be dealt with under rule 25; nor can a remand be ordered so as to enable a party to fill up the lacuna in his case. It has been repeatedly held by this Court that a remand should not, generally speaking be ordered when the defect in the proceeding has been made due to the negligence or default of the party who will benefit by the remand. It has been further held that the mere fact that the evidence on record is not sufficient to enable a Court to come to a definite finding on the point in issue, is not sufficient to enable the Court to remand the case, when there is no reason to think that the parties did not have an opportunity of producing all the evidence that they desired to produce before the trial Court. There is a clear danger that in such cases a remand order may in effect be an invitation to perjury." By citing the said judgment, the learned counsel appearing for the appellant contended that the Appellate Court should not have remanded the matter to the Trial Court for deciding the matter afresh. 8. The learned counsel further relied on a decision reported in 1988 (1) M.L.J. 196 (RAJALAKSHMI v. MINOR VENKATESAN) wherein it has been held as follows:- "I find much force in the contention of the learned counsel for the appellants that the lower appellate Court has not understood the scope of Order 41, Rule 23 or 23-A C.P.C., but exercised its jurisdiction improperly contrary to ratio laid down in various decisions of this Court. For all these reasons, the order of remand is certainly not sustainable and it is liable to be set aside." 9. Yet another decision that has been cited by the learned counsel appearing for the appellant is reported in 2007 (2) C.T.C. 49 (KANNATHAL v. ARULMIGHU KANNIAMMAL KARUPPASAMY THIRUKOIL) wherein it has been held as follows:- "In the light of the law laid down by the Apex court in the decisions reported in ISHWARDAS v. STATE OF MADHYA PRADESH AND OTHERS ( AIR 1979 S.C. 551 ) and P.PURUSHOTTAM REDDY AND ANOTHER v. PRATAP STEELS LIMITED ( 2002 (2) S.C.C. 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." 10. As rightly pointed out by the learned counsel for the appellant, the order of remand made without coming to the conclusion that the decree and judgment of the Trial Court are to be reversed or set aside, is not proper. It shall be noted that Order 41 Rule 27 C.P.C. itself contemplates that the Appellate Court should reverse or set aside the decree before remanding the case. The power of remand under Order 41 Rule 27 and 27-A C.P.C. can be exercised by the Appellate Court only if it comes to the conclusion that the judgment and decree of the trial Court are erroneous on fact or on law and are therefore, liable to be reversed or set aside. Only after coming to such a conclusion, if the Appellate Court is of the opinion that the interest of justice requires that the matter should be decided by the Trial Court afresh, it can remand the suit for fresh disposal. The Appellate Court should exercise such power only on sound judicial principle. Thus, I am of the considered opinion that the Appellate Court, without coming to the conclusion that the judgment and decree of the Trial Court are erroneous on fact or on law and liable to be reversed or set aside, simply remanded the matter on the ground that since the applications for reception of additional documents and for amendment of pleading have been allowed, the matter shall be remanded to the Trial Court for fresh disposal. Such a finding arrived at by the Appellate Court is totally against the principles enumerated under Order 41, Rules 23, 23-A and 27 C.P.C.. 11. If additional evidence placed before the Court is such that receiving them would be in the interest of justice, then the Appellate Court ought to have permitted the parties to take additional evidence in the Appellate Court itself, instead of remanding the same to the Trial Court. Instead of doing so, the Appellate Court has erroneously remanded the matter to the Trial Court for fresh disposal. 12. For the reasons stated above, I am constrained to hold that the order of remand made by the Subordinate Judge, Tiruvarur made in A.S.No.45 of 2005 dated 8. Instead of doing so, the Appellate Court has erroneously remanded the matter to the Trial Court for fresh disposal. 12. For the reasons stated above, I am constrained to hold that the order of remand made by the Subordinate Judge, Tiruvarur made in A.S.No.45 of 2005 dated 8. 2006 is liable to be set aside and accordingly, the same is set aside. The Civil Miscellaneous Appeal is allowed. There is no order as to costs. 13. Considering the fact that the suit is of the year 1995, the lower Appellate Court, namely, the Subordinate Judge, Tiruvarur is directed to dispose of the said appeal as expeditiously as possible, preferably on or before 31st July, 2007 and report the same to this Court. No costs.