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2008 DIGILAW 3159 (MAD)

Settu Asari v. Saravanan

2008-08-28

M.VENUGOPAL

body2008
Judgment :- This Civil Miscellaneous Appeal is filed by the appellants/respondents/plaintiffs as against the Judgment and Decree dated 24.04.2003 passed in A.S.No.57 of 1996 by the first appellate authority viz., II Additional Sub Judge, Trichirapalli in setting aside the Judgment and Decree dated 25.06.1996 passed in O.S.No.1200 of 1987 by the II Additional District Munsif Court, Trichirapalli and remanding the matter for fresh trial to the lower Court. 2. The appellants/respondents/plaintiffs have filed a suit O.S.No.1200 of 1987 on the file of II Additional District Munsif Court, Trichirapalli praying for a decree of permanent injunction restraining the respondents/ defendants their, men, agents and servants etc. From in any way interfering with their peaceful possession and enjoyment of the suit property and after contest, on examination of oral and documentary evidence, the appellants/respondents/plaintiffs were granted the decree for the relief of permanent injunction by the trial Court. 3. The respondents/appellants/defendants have filed A.S.No.57 of 1996 on the file of II Additional Sub Court, Trichirapalli aggrieved against the Judgment and Decree dated 25.06.1996 passed in O.S.No.1200 of 1987 by the II Additional District Munsif, Trichirapalli in decreeing the suit by granting the relief of permanent injunction. 4. The learned counsel for the appellants/ respondents/plaintiffs submits that the first appellate Court has erroneously shifted the burden of proof on the appellants/respondents/plaintiffs and that when the respondents/defendants dispute the accident of suit property then the burden is on them to prove the same, which fact has not been taken note of by the first appellate court and that the first appellate court has erred in remanding the suit for retrial and further that the first appellate Court ought to have seen that when the trial Court has delivered his Judgement on merits then it is the duty of the first appellate Court to deal with the appeal on merits and in the instant case, the lower appellate Court has not dealt with the matter on merits and its Judgement in remanding the matter for retrial is not sustainable in law and that the first appellate Court has not followed the procedure enunciated under Order 41 Rule 23 to 29 of Civil Procedure Code and in any event prays for allowing the appeal to prevent miscarriage of justice. 5. 5. The case of the appellants/respondents/plaintiffs is that the first plaintiff Sadayan Asari (deceased) is the absolute owner of the suit property as per sale deed dated 21.6.50 executed by Muthammal and her son Mavarasu Asari for a valid consideration and that from the date of the purchase the appellants/respondents/plaintiffs are in possession and enjoyment of the same by putting up fences, thatched kitchen, garden and by tying cattle and before that the deceased first plaintiffs predecessors -in-title were in absolute possession and enjoyment of the suit property and that the respondents/defendants are the owners of property which lies immediate west of the suit property and that the respondents/defendants have asked the appellants/plaintiffs to sell the suit property to them for a lower price, to which course the appellants /plaintiffs are not agreed to and that on 03.07.1987 the respondents/defendants have been attempting to trespass into the suit property by force but the same has been prevented by the appellants/plaintiffs with the help of local police and hence, the suit is laid for the relief of permanent injunction restraining the respondents/ defendants, their men, agents and servants etc. from in any way interfering with the appellants/plaintiffs peaceful possession and enjoyment of the suit property. 6. from in any way interfering with the appellants/plaintiffs peaceful possession and enjoyment of the suit property. 6. The stand of the respondents/defendants is that they deny that the deceased first plaintiff is the absolute owner of the suit property by means of sale deed dated 21.6.50 executed by Muthammal and her son Mavarasu for a valuable consideration and that the said sale deed is not in existence and that also deny that before the appellants/plaintiffs their predecessors-in-title were in possession and enjoyment of the suit property and that admittedly the respondents are the owners of the property which lies immediately west of the plaintiffs property and that the extents mentioned in the sale deed are excessive and the same is not available on ground and the remaining half extent has been purchased by the respondents/defendants father Muthusami Asari for a sum of Rs.700/- under a registered sale deed dated 07.08.1973 from Seerengammal and children, who are the heirs of Mavarasu Asariyar being the previous owner, viz., the western half including the standing coconut trees and ever since the date of purchase the said Muthusami Asari viz., the father of the respondents/defendants and before him their predecessors-in-title have been in possession and enjoyment of the property purchased by them including the coconut trees by tying cattle, by storing hay, etc. and that there is no cause of action for filing of the suit and that the appellants/plaintiffs have no possession and enjoyment over the suit property at any point of time, much less on the date of the suit and that the property purchased by the respondents/defendants father have been dealt with by Muthusami Asari and the respondents/defendants by mortgaging the same and by paying house-tax or other charges etc. to the knowledge of everybody. 7. On the basis of arguments advanced in this appeal, this Court is inclined to allow the civil miscellaneous appeal and to remit the matter to the First Appellate Court viz., II Additional Sub Judge, Tiruchirapalli and hence, this Court has not dealt with the merits of the case in detail. 8. It is pertinent to point out that the First Appellate Authority viz., II Additional Sub Judge, Tiruchirapalli in appeal A.S.No.57 of 1996 has framed the point for determination as :Whether this appeal is to allowed? 9. 8. It is pertinent to point out that the First Appellate Authority viz., II Additional Sub Judge, Tiruchirapalli in appeal A.S.No.57 of 1996 has framed the point for determination as :Whether this appeal is to allowed? 9. In this connection, it is significant to make a mention that Or.41 R.31 of Civil Procedure Code enjoins that the judgment of the Appellate Court shall be in writing and shall state - (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein. 10. At this stage, this Court opines that it is obligatory for the First Appellate Court to consider all the issues arising in the case and it is not permissible to deal with one issue and dispose of the appeal. When the trial Court after considering the evidence has come to the conclusion then the Appellate Court should not ordinarily and generally remand the case, in the considered opinion of this Court. The First Appellate Court in law first must see whether it can dispose of the case itself and only if it is not possible to do so it is necessary in the interest of justice to remit the case by means of resorting to remand. Furthermore, if an issue can be decided by the Appellate Court on admitted facts empty formality of remand should be eschewed to promote the substantial cause of justice. As a matter of fact, an order of remand can be passed only in exceptional cases, for example, where there had been no real trial of the dispute and no complete or effectual determination of the proceedings and an aggrieved party complaining that he has suffered material prejudice on that score. In fact, an order of remand must be sparingly exercised and there should be an earnest attempt to dispose of the case by the Appellate Court itself in the interest of justice. 11. It cannot be gainsaid that the exact points that arise in appeal and require determination should be specifically stated in the Judgment. In fact, an order of remand must be sparingly exercised and there should be an earnest attempt to dispose of the case by the Appellate Court itself in the interest of justice. 11. It cannot be gainsaid that the exact points that arise in appeal and require determination should be specifically stated in the Judgment. The ingredients or Or.41 R.31 will have to find a place in the Judgement of the First Appellate Court when points in the dispute between the parties are raised before it. Moreover, in a case open to appeal, this Court opines that it is desirable that a Court of law should record its findings on all important issues/points for determination. 12. The learned counsel for the appellants/ respondents/plaintiffs contends that there is no necessity for the First Appellate Court to remand the matter back to the trial Court and as per Or.41 R.23 to 29 of Civil Procedure Code, a duty rests upon the First Appellate Court to find out as to whether the Judgment of the trial Court should be set aside and even if there are some defects and infirmities in the conclusion arrived at by the trial Court, these are not necessary grounds for remanding the matter and to lend support to the said contention he relies upon the decision Manickavasagam and others V. T.P.Ponnusamy and others ( 2007 (5) CTC 351 ) wherein this Court has inter alia held that Appellate Court is bound to find as to whether decree of trial Court is liable to be set aside and existence of defects or infirmities in reasoning given by trial Court is not ground enough to remand the case to trial Court. 13. He also cites the decision Arockiaprakash V. Rangasamy ( 2007 (3) Ctc 383 ) wherein this Court has among other things held that the Appellate Court cannot pass an order of remand as a matter of course and that the same is permissible only when the Appellate Court feels in the interest of justice that the remand is just and appropriate and that the Appellate Court should arrived at a specific finding on the materials available on record that the trial Court is erroneous and liable to be set aside, which is a condition precedent etc. 14. 14. Yet another decision V.Munusamy (deceased) and others V. M.Suguna ( 2005 (1) CTC 107 ) is relied on the side of the appellants/respondents/plaintiffs wherein this Court has held as follows: "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 (1) 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." 15. 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." 15. The learned counsel for the appellants/ respondents/plaintiffs urges that the First Appellate Court cannot remand the matter unnecessarily without decide the case on merits on the basis of available materials and evidence on record and in aid of his contention cites the decision Kannathal and 4 others V. 1.Arulmighu Kanniammal Karuppasamy Thirukoil, Pothanur Chettipalayam, Coimbatore rep. By its Executive Officer, A.Kalimuthu, S/o.Appiyanna Chettiar, Chettipalayam, Coimbatore and 2.State of Tamil Nadu, rep. By the District Collector, Coimbatore ( 2007 (2) CTC 49 at page 56) wherein this Court has laid down as below: "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 Appeal itself and for that purpose the remand is not needed." 16. It is not out of place to point out by this Court that in State of Punjab V. Hardyal ( (1985) 2 SCC 629 at page 636) the Honble Supreme Court has inter alia held that the other questions involved in the case, however, have not been dealt with by the High Court and it rest content by making a bald observation that there is no other point to be decided in this appeal. The objector-respondent had raised a number of pleas to challenge the award giving rise to four issues. It was, therefore, obligatory for the High Court to consider those points unless they had been given up by the objector-respondent. There is nothing on the record to suggest that the respondent had given up those grounds. The case will, therefore, have to be sent back to the High Court for deciding the other issues involved in this case. 17. It was, therefore, obligatory for the High Court to consider those points unless they had been given up by the objector-respondent. There is nothing on the record to suggest that the respondent had given up those grounds. The case will, therefore, have to be sent back to the High Court for deciding the other issues involved in this case. 17. In Peria Nachi Muthu Gounder and others V. Raju Thevar (dead) and others ( (1985) 2 SCC 290 at page 294) the Honble Supreme Court has held thus: "As a last attempt counsel for the appellants made a faint request that if the materials were insufficient an opportunity should be given to the appellants to lead evidence on that aspect of the matter and the matter should be remanded back to the trial Court. We do not think that at this distance of time we could consider this request favourably especially when there was no specific plea raised by the appellants in the written statement based on this aspect of the matter." 18. It must be borne in mind that in every appeal it is the duty of the appellants to show some reason why the Judgment appealed from should be displaced and there must be some balance in favour of the appellants to justify the alteration of the Judgment as it stands, in the considered opinion of this Court. No wonder, the ingredients of Or.41 R.31 of Civil Procedure Code are mandatory, besides being explicit and admit of no exception. 19. No wonder, the ingredients of Or.41 R.31 of Civil Procedure Code are mandatory, besides being explicit and admit of no exception. 19. As far as the present case is concerned, the First Appellate Court in its Judgment in A.S.No.57 of 1996 dated 24.04.2003 at para 12 has inter alia opined that in the sale deed the measurement of the suit property has been wrongly mentioned and that to amend the same an interlocutory application (I.A.No.112 of 1998) has been filed to amend the plaint in appeal and the same has been dismissed and considering the nature of the case in order to come to a clear reasoned conclusion, the plaint has to be amended before the trial Court and after making such amendment, opportunity requires to be given to both parties to adduce proper evidence in the interest of justice and therefore, the Court is unable to come to the clear conclusion based on the existing plaint filed by the appellants/plaintiffs before the trial Court and therefore, has remitted the case to the trial Court by providing opportunities to both parties on the principles of natural justice. 20. Admittedly, before the trial Court in the suit on behalf of the appellants/plaintiffs witness P.W.1 (second plaintiff) has been examined and Ex.A.1 has been marked and on the side of respondents/defendants, D.W.1 (first defendant) has been examined and Exs.B.1 to B.6 were marked. 21. A perusal of the First Appellate Court Judgment clearly indicates that there has been no appreciation of evidence by it in proper perspective as per the relevant ingredients of Or.41 of Civil Procedure Code. It is significant to point out that it is the settled law if it is possible for the Appellate Court to evaluate the oral and documentary evidence, then it is not open to the Appellate Court to come to the aid of the parties to fill up the lacuna in the case/evidence. In fact, if material particulars are available, it is the primordial duty of the Appellate Court itself to decide the matter in one way or the other. Suffice it to point out that the Judgment of remand passed by the First Appellate Court undoubtedly provides a lever to extend the legal proceedings with a view to protract the same. In fact, if material particulars are available, it is the primordial duty of the Appellate Court itself to decide the matter in one way or the other. Suffice it to point out that the Judgment of remand passed by the First Appellate Court undoubtedly provides a lever to extend the legal proceedings with a view to protract the same. The legal requirements of Or.41 R.31 of Civil Procedure Code are that the Judgment of the First Appellate Court has to project the points for determination, record the decision thereon and assign its own reasons for arriving at such a decision. The object is to enable the second Appellate Court to be in a position to find out the track traversed by the First Appellate Court. 22. In the instant case on hand, this Court opines that the First Appellate Court has not appreciated or assessed the evidence on record and therefore, the Judgment of remand passed by it cannot stand the scrutiny in the eye of law, in the considered opinion of this Court. It is to be noted that as per Section 107(2) of Civil Procedure Code, the Appellate Court is possessing all the powers of trial Court including to take additional evidence or require such evidence to be taken in respect of a suit instituted therein and further that an appeal is continuation of original proceedings in legal parlance. 23. For the aforesaid reasons, this Court comes to the conclusion that the Judgment of the First Appellate Court deserves to be set aside in furtherance of substantial cause of justice consequently, it is set aside by this Court for the reasons assigned in this appeal. 24. In the result, the Civil Miscellaneous Appeal is allowed. The matter is remanded back to the First Appellate Court viz., II Additional Sub Judge, Trichirapalli to hear the appeal and to decide the same according to law by adverting to the points of controversy and also by scrutinising the material evidence on record and also by providing opportunities to both parties to let in oral/documentary evidence if they so desire or if need be as the case may be. The First Appellate Court is directed to dispose of the appal A.S.No.57 of 1996 within a period of three months from the date of receipt of copy of this order. The First Appellate Court is directed to dispose of the appal A.S.No.57 of 1996 within a period of three months from the date of receipt of copy of this order. Considering the facts and circumstances of the case, the parties are directed to bear their own costs in this appeal. Consequently, connected miscellaneous petition is closed.