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2010 DIGILAW 547 (MAD)

Thangavelu v. Sampoornam & Others

2010-02-15

R.SUBBIAH

body2010
Judgment 1. This appeal is filed as against the judgment and decree dated 30.06.2009 made in A.S.No.326 of 2002, whereby the lower appellate Court has set aside the judgment and decree dated 06.09.2001 made in O.S.No.607 of 1997, passed by the District Munsif Court, Namakkal and remanded the matter with a direction to permit the first respondent herein to mark the documents filed along with I.A.No.8 of 2009 in A.S.No.326 of 2002 and adduce the evidence on those documents and decide the case afresh. 2. The facts which are necessary to decide the issue involved in this appeal are as follows:- The suit in O.S.No.607 of 1997 was filed by the first respondent herein as against the second respondent herein for a partition of their house property. In the said suit, the third respondent herein viz., Perumal Gounder as well as one Sathiya were impleaded as the defendants 2 & 3. They were impleaded by way of abundant caution, since both of them were residing in the suit property. In the said suit, the said Sathiya, who was impleaded as defendant No.3 filed a counter by making a counter claim on the ground of adverse possession. Pending the suit, the said Sathiya had died and his minor daughter viz., Selvi was impleaded as the defendant represented by her grand father Thangavelu, the appellant herein. 3. In order to prove the claim, on the side of the first respondent/plaintiff, the first respondent has examined himself as P.W.1 and marked Ex.P.1 Sale Deed dated 11.09.1969 executed by Sampoornam and others in favour of one Mariyayee before the trial Court. On the side of the minor 3rd defendant, the grand father of the minor 3rd defendant, the appellant herein examined himself as D.W.1. That apart one Thiyagarajan and the third and second respondent in these appeal examined themselves as D.W.2 to D.W.5. On an appreciation of the evidence, the trial Court dismissed the suit filed by the first respondent/plaintiff and decreed the counter claim made by the deceased Sathiya. 4. Aggrieved over the same, the first respondent herein filed the appeal in A.S.No.326 of 2002 before the lower appellate Court. Pending the said appeal, the minor child of the deceased Sathiya had also died. Hence, the appeal was prosecuted by the grand father of said Selvi viz., Thangavelu/the appellant herein. 4. Aggrieved over the same, the first respondent herein filed the appeal in A.S.No.326 of 2002 before the lower appellate Court. Pending the said appeal, the minor child of the deceased Sathiya had also died. Hence, the appeal was prosecuted by the grand father of said Selvi viz., Thangavelu/the appellant herein. In the appeal proceedings, the first respondent herein filed an application in I.A.No.23 of 2006 to receive the reply statement, but the said application was dismissed by the lower appellate Court. Subsequently, the first respondent filed another application in I.A.No.8 of 2009 to receive the additional document in the appeal. The lower appellate Court by allowing the said application, has set aside the judgment and decree of the trial Court and remanded the matter to the trial Court with a direction to permit the parties to adduce additional evidence in respect of those documents and direct the trial Court to decide the case afresh. Aggrieved over the same, the 4th respondent before the lower appellate Court has preferred the present appeal. 5. Thelearned counsel appearing for the appellant contended that as a routine, the order of remand cannot be ordered. The lower Appellate Court itself can decide the issue involved in this appeal based on the available document and it can itself decide the issue involved in the appeal based on the available evidence. In support of the said contention, the learned counsel appearing for the appellant has also relied upon two judgments reported in (H.P.Vedavyasachar .Vs. Shivashankara & Another and reported in (Arockiaprakash Vs. Rangasamy). 6. Per contra, the learned counsel appearing for the respondents made his submissions supporting the order of remand passed by the Lower Appellate Court. 7. Heard, the learned counsel appearing on either side and perused the materials available on record. 8. Ona careful scrutiny of the judgment passed by the lower appellate Court, I find that it remanded the matter for the purpose of marking the documents filed along with I.A.No.8 of 2009 by examining the witnesses and also affording an opportunity to the parties to adduce additional evidence. In my considered opinion, for the purpose of marking the documents through witnesses, remand is not necessary. It is a well settled principle, that an appeal is a continuation of the original proceedings. In my considered opinion, for the purpose of marking the documents through witnesses, remand is not necessary. It is a well settled principle, that an appeal is a continuation of the original proceedings. Under such circumstances, the lower appellate Court itself can record the evidence by permitting the first respondent herein to mark the documents and also by affording opportunity to the appellant herein to cross examine the witnesses. In this regard, a reference could be placed to the judgment, relied upon by the learned counsel appearing for the appellant. The relevant portion of which reads as follows:- "Such an order of remand could be only in terms of Order XLI Rule 23, Order XLI Rule 23A or Order XLI Rule 25 of the Code. None of the said provisions have any application in the instant case." That apart, in yet another case relied upon by the learned counsel appearing for the appellant, this Court has observed as follows:- "The catena of judgments reiterate the following principles of law that the order of remand cannot be passed by the Appellate Court as a matter of course. Remand is permissible only when the Appellate Court in the interest of justice feels that the remand is just and appropriate and that the Appellate Court should arrive at a specific finding on the materials available on record that the judgment of the Trial Court is erroneous and liable to be set aside, which is a conditional precedent. The Appellate Court should not remand the case on the ground that the evidence is not properly assessed. Order of remand should not be made when the defect in the proceeding has been due to negligence or default of the party, who will benefit by the remand. The order of remand should not be made to fill up a lacuna by allowing the party to adduce evidence. It 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 evidence. If material particulars are available, the Appellate Court itself should decide the matter one way or the other. Remanding the matter for fresh adjudication gives the litigation a fresh lease of life in the protraction of proceedings. 9. If material particulars are available, the Appellate Court itself should decide the matter one way or the other. Remanding the matter for fresh adjudication gives the litigation a fresh lease of life in the protraction of proceedings. 9. But in the instant case, on a perusal of the order of remand, I find that no valid reason has been assigned by the lower Appellate Court for remand of the matter except for the reason of marking the document through witnesses. As contended by the learned counsel appearing for the appellant, the appeal proceedings is a continuation of the original proceedings. Under such circumstances, the lower Appellate Court itself ought to have allowed the parties concerned to mark the additional document by examining the witnesses and also by affording opportunity to cross examine by the other side. Therefore, I am of the opinion that the order of remand passed by the lower Appellate Court is liable to be set aside and accordingly, the order of remand dated 30.06.2009 in A.S.No.326 of 2002 passed by the Additional District Judge, Fast Tract Court, Namakkal is hereby set aside and the matter is remitted to the lower appellate Court with a direction to permit the first respondent to mark the document by examining the witnesses, affording an opportunity to the appellant herein to cross examine the witnesses and decide the case afresh in the appeal once for all. No costs. Consequently, connected M.P. is closed.