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2010 DIGILAW 1128 (MAD)

G. v. Marichamy VS V. Moorthy Naicker(died)

2010-03-19

D.HARIPARANTHAMAN

body2010
Judgment :- 1. This Civil Miscellaneous Appeal has been filed by the appellants to call for the records relating to the judgment and decree dated 26.06.2007 passed by the Sub Judge, Periyakulam in A.S.No.33 of 2005 filed against the judgment and decree dated 31.01.2005 passed by the District Munsif Court, Periyakulam in O.S.No.161 of 2004 and set aside the same. 2. The appellants are the plaintiffs who filed O.S.No.250 of 1995 on the file of the Sub Court, Periyakulam and thereafter it was transferred to the District Munsif Court, Periyakulam and renumbered as O.S.No.161 of 2004, praying for declaration to declare the suit properties belong to the plaintiffs and for recovery of possession. 3. A full fledged trial was conducted. Two witnesses were examined on the side of the plaintiffs and documents Ex.A.1 to A.8 were marked and two witnesses were examined on the side of the defendants and documents Ex.B.1 to B.7 were marked. Thereafter, the Trial Court decreed the suit as prayed for on 31.01.2005 in favour of the plaintiffs. Against that order, the defendants filed A.S.No.33 of 2005 before the Sub Court, Periyakulam. The first Appellate Court set aside the judgment and decree in O.S.No.161 of 2004 on 26.06.2007 and remanded the matter to the Trial Court. The present appeal is against the order of remand. 4. The learned Counsel for the appellants submits that the first appellate Court remanded the matter and permitted the defendants to file some document and permitted the parties to lead further evidence, if necessary. The first Appellate Court ought not have remanded the matter in those circumstances and the defendants should have let in additional evidence in the appellate Court itself and the appellate Court should have disposed of the appeal in one way or the other, without remanding the matter to the Trial Court. The learned Counsel for the appellants relies on the decision of this Court in Manickavasagam and Others Vs. T.P.Ponnusamy and Others reported in (2007)6 MLJ 966 . 6. On the other hand, the learned Counsel for the respondents herein, who were defendants in the suit, contends that there is no infirmity in the order of the first Appellate Court in remanding the matter. The parties were given opportunities to put forth their case. The learned Counsel relies on the decision of the Honourable Apex Court in Smt.Bachchan Devi and Another Vs. The parties were given opportunities to put forth their case. The learned Counsel relies on the decision of the Honourable Apex Court in Smt.Bachchan Devi and Another Vs. Nagar Nigam, Gorakhpur and Another reported in (2008)3 MLJ 303(SC). 7. I have considered the submissions made on either side. 8. It is necessary to extract the following passage from the order of the first Appellate Court, to appreciate the reasoning from the order of the Appellate Court for remand : "Tamil" 9. From the above passage, it is seen that the defendants wanted to file some document and even those documents were not made available before the first Appellate Court. The first Appellate Court could not remand the matter as of routine. The defendants are at liberty to produce additional evidence as provided under Order 41 Rule 27 of Civil Procedure Code. 10. In my view, the judgment of this Court reported in Manickavasagam and Others Vs. T.P.Ponnusamy and Others reported in (2007)6 MLJ 966 relied on by the the learned Counsel for the appellant squarely applies to this case. In the said judgment, the learned Single Judge has referred to a Division Bench of this Court in Visalakshmi Ammal Vs. Dhanalakshmi Ammal reported in 1989-2 L.W.414 in paragraph 12 of its order and the same is extracted hereunder: "12. A Division Bench of this Court in the decision reported in Visalakshmi Ammal V. Dhanalakshmi Ammal 1989-2 L.W.414 held thus, "The unsatisfactory consideration of an issue by the first Court, and 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. 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. An order of remand should not be taken to be matter of course on the above grounds. 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." 11. On the other hand, the judgment reported in 2008(3) MLJ 303 relied by the learned Counsel for the defendants also supports the case of the appellants. 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." 11. On the other hand, the judgment reported in 2008(3) MLJ 303 relied by the learned Counsel for the defendants also supports the case of the appellants. In the said judgment, the Trial Court decreed the suit. An appeal was filed by the defendants, against the judgment and decree of the Trial Court. During the pendency of the appeal, the application to amend the written statement was allowed by the first Appellate Court. Thereafter, the first Appellate Court framed certain issues. The first Appellate Court remanded the matter to the Trial Court for fresh disposal. That was successfully challenged before the High Court. The Honourable Apex Court confirmed the order of the High Court holding that the first Appellate Court should have decided the entire matter including the additional issues framed by itself. 12. For the reasons stated above, the judgment and decree of the first Appellate Court is set aside and the matter is remanded back to the first Appellate Court to decide the matter in accordance with law and the defendants are at liberty to file necessary application to lead additional evidence in accordance with law. 13. Accordingly, this Civil Miscellaneous Appeal is allowed in the above terms. Consequently, the connected Miscellaneous Petition is closed. No costs.