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2008 DIGILAW 3603 (MAD)

Jegannathan v. Raju Sigamani

2008-09-26

A.SELVAM

body2008
Judgment :- This civil miscellaneous appeal has been preferred against the judgment and decree passed in Appeal Suit No.416 of 1999 by the Second Additional Subordinate Court, Tiruchirapalli. 2. The appellants herein as plaintiffs have instituted Original Suit No.883 of 1990 on the file of the Principal District Munsif Court, Tiruchirapalli, praying to pass perpetual injunction, wherein the present respondent has been shown as sole defendant. 3. It is averred in the plaint that the defendant as plaintiff has instituted Original Suit No.195 of 1977 for the reliefs of declaration, perpetual and mandatory injunctions, wherein the husband of the first plaintiff has been shown as defendant. The suit has been decreed subject to the right of the present plaintiffs. The plaintiff therein as appellant has filed Appeal Suit No.94 of 1982 on the file of the first appellate Court and the same has also been dismissed. Against the concurrent judgments, Second Appeal No.660 of 1984 has been filed on the file of the High Court and the same has also been dismissed. Now the defendant has been making arrangements to commit further encroachments in the suit property and the defendant has tried to put up construction. If the defendant is allowed to put up construction in the suit property, the plaintiff cannot use the same as pathway. Under the said circumstances, the present suit has been instituted for the reliefS indicated supra. 4. It is averred in the written statement filed on the side of the defendant that the defendant as plaintiff has instituted Original Suit No.195 of 1977 for the reliefs of declaration, perpetual and mandatory injunctions. The suit has been decreed subject to pathway right of the defendant therein. The defendant has put up various constructions in the suit property and the same are in existence for more than seventeen years. There is no merit in the suit and the same deserves dismissal. 5. On the side of the plaintiffs, a reply statement has been filed, wherein the averments made in the written statement have been denied. 6. In the additional written statement filed on the side of the defendant, it has been stated that the present suit has been instituted against the conditions mentioned in the judgment and decree passed in Second Appeal No.660 of 1984. There is no merit in the suit and the same deserves dismissal. 7. 6. In the additional written statement filed on the side of the defendant, it has been stated that the present suit has been instituted against the conditions mentioned in the judgment and decree passed in Second Appeal No.660 of 1984. There is no merit in the suit and the same deserves dismissal. 7. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after pondering both the oral and documentary evidence has decreed the suit as prayed for. Against the judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.416 of 1999 on the file of the first appellate Court. The first appellate Court has set aside the judgment and decree passed by the trial Court and ultimately remanded Original Suit No.883 of 1990 to the file of the trial Court. Against the judgment and decree passed by the first appellate Court, the present civil miscellaneous appeal has been filed. 8. The first appellate Court has set aside the judgment and decree passed by the trial Court and ultimately remanded Original Suit No.883 of 1990 to the file of the trial Court. Against the judgment and decree passed by the first appellate Court, the present civil miscellaneous appeal has been filed. 8. The learned counsel appearing for the appellants/plaintiffs has repeatedly contended that with regard to the suit property Original Suit No.195 of 1977 has been filed by the defendant herein as plaintiff and the same has been decreed subject to the right of pathway of the present plaintiffs and against the judgment and decree passed by the trial Court, the plaintiff therein as appellant has filed Appeal Suit No.94 of 1982 and the same has also been dismissed, wherein also the right of the plaintiffs herein has been declared and against the judgment and decree passed by the first appellate Court, Second Appeal No.660 of 1984 has been filed on the file of this Court and the same has also been dismissed, wherein also the right of the plaintiffs herein has been declared and now the defendant has been making arrangements to put up construction over the suit property so as to deter the plaintiffs from using the same and under the said circumstances, the plaintiffs have filed the present suit for the relief of perpetual injunction and further he has contended that in the trial Court an advocate commissioner has been appointed and he has inspected the suit property and filed his report and plan and the same have been marked as Exs.C1 & C2 and the trial Court, after considering all the evidence available on record, has rightly decreed the suit, but, the first appellate Court has erroneously remanded the suit so as to fill up the lacuna which exists on the side of the defendant and therefore, the judgment and decree passed by the first appellate Court are liable to be set aside. 9. The learned counsel appearing for the respondent/defendant has befittingly contended that the trial Court has decreed the suit as prayed for, but the first appellate Court has set aside the judgment and decree passed by the trial Court and therefore, against the judgment and decree passed by the first appellate Court, only appeal will lie and therefore, the present civil miscellaneous appeal is not at all maintainable. 10. 10. The learned counsel appearing for the appellants/plaintiffs have accited the following decisions; a) In 2000 (I) CTC 613 (M/s.Sekaran Real Estates Vs. Punjab National Bank), this Court has held that if an order of remand is vague, the same can be set aside. b) In 2002 (4) Law Weekly 276 (palanisamy @ Uthayarpalayanthan Vs. Apparsamy) the Division Bench of this Court has held that when all the materials are available before appellate Court, it ought to decide the matter one way or other, and there is no justification for remand. c) In 2005 (3) Law Weekly 366 (S. Shanmugham Vs. S.Sundaram and others), the Division Bench of this Court has held that Order 41 Rules 23 to 29 of the Code of Civil Procedure, 1908 are not a bar to take further evidence or to appoint a Commissioner, if so necessary, and to try the appeal, there is no necessity to remand the matter back to the trial Court. 11. In fact, this Court has closely perused the entire judgment and decree passed by the first appellate Court. The first appellate Court after discussing the rival contentions raised on either side, has found that necessary materials are not available in the Commissioner Report which has been marked as C1 and only for the purpose of getting sufficient materials, the first appellate Court has allowed the appeal and set aside the judgment and decree passed by the trial Court and ultimately remanded the suit. 12. From the argument advanced by the learned counsel appearing for the respondent/defendant, the Court has to first analyse as to whether the present civil miscellaneous appeal is legally maintainable against the judgment and decree passed by the first appellate Court. 13. In fact, the learned counsel appearing for the appellants/plaintiffs has not objected the point with regard to maintainability of the present civil miscellaneous appeal, which has been raised by the learned counsel appearing for the respondent/ defendant. 14. At this juncture, it would be more useful to look into the provision of Order 43 Rule 1 (u) of the Code of Civil Procedure, 1908 and the same reads as follows; "An order under Rule 23 or Rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court." 15. 14. At this juncture, it would be more useful to look into the provision of Order 43 Rule 1 (u) of the Code of Civil Procedure, 1908 and the same reads as follows; "An order under Rule 23 or Rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court." 15. Order 41 Rule 23 of the Code of Civil Procedure reads as follows; "Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to readmit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidenced during the trial after remand." 16. Order 41 Rule 23-A of the said Code reads as follows; "Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23." 17. From the conjoint reading of the Order 41 Rule 23 & 23-A of the said Code and also Order 43 Rule 1 (u) of the said Code, it is pellucid that if an appellant Court has set aside the judgment and decree passed by the trial Court and remanded the suit, only an appeal will lie against the judgment and decree passed by the appellate Court. 18. The learned counsel appearing for the respondent/defendant has befittingly drawn the attention of the Court to the decision reported in 2004(3) CTC 130 (Supreme Court) (Narayanan Vs. 18. The learned counsel appearing for the respondent/defendant has befittingly drawn the attention of the Court to the decision reported in 2004(3) CTC 130 (Supreme Court) (Narayanan Vs. Kumaran and others), wherein the Apex Court has held that it is obvious from the Rule 1 Order 43 that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the appellate Court, instead of making an order of remand has passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand where it is to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that the appeal under Order 43 Rule (1) clause (u) should be heard only on the ground enumerated in Section 100 of the Code of Civil Procedure, 1908. 19. In the instant case, as pointed out earlier, the first appellate Court has passed a full fledged judgment, wherein the judgment and decree passed by the trial Court have been set aside. The first appellate Court has not simply passed an order of remand with regard to particular aspect. The first appellate Court has passed a detailed judgment and thereby set aside the judgment and decree passed by the trial Court under Order 43 Rule 1 (u) of the Code of Civil Procedure, against the judgment and decree passed by the first appellate Court, only an appeal will lie, but the appellants/plaintiffs have filed the present civil miscellaneous appeal against the judgment and decree passed by the first appellate Court. 20. In view of the provision of law referred to supra and also in view of the dictum given by the Honourable Apex Court in the decision reported 2004(3) CTC 130 (Supreme Court) (Narayanan Vs. Kumaran and others), it is very clear that the present civil miscellaneous appeal is not at all maintainable and on that ground alone, the same deserves dismissal. Since the present civil miscellaneous appeal is not at all maintainable and the same deserves dismissal, the merits of the argument advanced by the learned counsel appearing for the appellants/plaintiffs need not be gone into. 21. Since the present civil miscellaneous appeal is not at all maintainable and the same deserves dismissal, the merits of the argument advanced by the learned counsel appearing for the appellants/plaintiffs need not be gone into. 21. In fine, this civil miscellaneous appeal deserves dismissal and accordingly is dismissed without costs on the ground that the same is not legally maintainable. The appellants/plaintiffs are at liberty to file an appeal against the judgment and decree passed by the first appellate Court in Appeal Suit No.416 of 1999 by the Second Additional Subordinate Court, Tiruchirapalli.