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2012 DIGILAW 4090 (MAD)

P. v. Chinnaraj VS V. Nagaraj

2012-10-03

C.T.SELVAM

body2012
Judgment 1. This Civil Miscellaneous Appeal arises against the order of remand dated 19.11.2010. in A.S. No. 4 of 2010 on the file of the Subordinate Judge, Hosur in remitting the judgment and decree dated 20.06.2006 in O.S.No.38 of 2005 to the file of the Judicial Magistrate cum District Munsif Court at Denkanikottai. 2. The appellant is the plaintiff in suit filed in O.S.No.38/2005 on the file of Judicial Magistrate cum District Munsif, Denkanikottai. He sought specific performance of contract of sale and for delivery of possession on the basis of an alleged sale agreement entered into with the defendant/respondent. The case of the plaintiff was that pursuant to an agreement of sale dated 11.04.2003, the appellant/plaintiff had paid the defendant a sum of Rs.75,000/-. Period of two years stood provided for payment of balance sum of Rs.50,000/-. The appellant/plaintiff was always willing and ready to perform his part of contract and has repeatedly called the respondent/defendant to effect performance, but the respondent had failed to do so. The appellant issued notice dated 01.04.2005. The defendant issued a reply notice containing false particulars. The case of the respondent/defendant was that he had borrowed a sum of Rs.50,000/-in the year 2002. At such instance, he had signed a blank promissory note owing to pressure exerted by the plaintiff and persons acting on his behalf. The value of the property was Rs.3,50,000/-. The suit was decreed and there against A.S.No.4/2010 was filed wherein an application for recording additional evidence was moved in I.A. No. 101/2010. The Lower Appellate Court has set aside the judgment and remanded the matter for fresh consideration. Aggrieved thereby, the appellant had preferred the present appeal. 3. Heard learned counsel for appellant and learned counsel for respondent. 4. The rival submissions before the Lower Appellate Court were as follows: It was the appellant contention that sufficient opportunity stood afforded by the trial court to the respondent/defendant to examine witnesses and only upon failure to do so, the trial court had passed judgment and decree against him. Further pursuant to the decree, a sale deed stood executed by the court and the respondent/defendant had belatedly moved I.A.No.101/2010, at the stage where the appellant/claimant had sought delivery of possession. The contention of the respondent/defendant was that the trial court had proceeded on the basis that P.W.3 Muniappan was an attester to the agreement of sale dated 11.04.2003. Further pursuant to the decree, a sale deed stood executed by the court and the respondent/defendant had belatedly moved I.A.No.101/2010, at the stage where the appellant/claimant had sought delivery of possession. The contention of the respondent/defendant was that the trial court had proceeded on the basis that P.W.3 Muniappan was an attester to the agreement of sale dated 11.04.2003. Accepting such position as corroborating the evidence of P.W.1 plaintiff the trial court had wrongly decreed the suit. P.W.2 who had been examined before the trial court was only a witness who identified a party to the agreement. P.W.3 was not the attester of the document. The attester was one Unniyappan and not P.W.3 Muniyappan and therefore it was necessary to call for examination by an expert, the signature of P.W.3-Unniyappan as found in the deposition and the signature of the attesting witness in Ex.P.1 agreement, towards arriving at a just decision in the case. 5. The lower appellate court has been of the view that as it had been contended that P.W.3, who had deposed that he was an attesting witness to Ex.P.1 really was not so and the attester was the person whose examination was sought in I.A.No.101/2010, it was necessary to allow I.A.No.101/2010 as also to get the opinion of an expert on the signature of the attesting witness in Ex.P.1. In ordering remand it also permitted examination of further witnesses as also the production of further documents. 6. We are unable to sustain the order under challenge. Remand is not a procedure easily to be resorted to. In decision of Apex court in Municipal Corporation, Hyderabad vs. Sunder Singh, (2008) 8 SCC 485 it was held that an order of remand should not be passed by the First Appellate Court as a matter of course. In fact, the Court should be slow in exercising the discretionary powers conferred under Order 4 Rule 23. Further, before passing an order of remand, the first Appellate Court has to record reasons that re-trial was necessary and also give a finding that the decree and judgment passed by the trial Court is liable to be reversed and only then, an order of remand should be passed. It would be useful to extract Para Nos. 17, 18, 32, 33 and 34 of such judgment:- "17. Order 41 Rule 23 would be applicable when a decree has been passed on a preliminary issue. It would be useful to extract Para Nos. 17, 18, 32, 33 and 34 of such judgment:- "17. Order 41 Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court. 18. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order 41 Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties. 32. A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order 41 Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order 41 Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence. 33. Order 41 Rule 23-A of the Code of Civil Procedure is also not attracted. The High Court had not arrived at a finding that a retrial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order 41 Rule 23 of the Code. 34. An order of remand cannot be passed on ipse dixit of the court. The provisions of Order 2 Rule 2 of the Code of Civil Procedure as also Section 11 thereof could be invoked, provided of course the conditions precedent there for were satisfied. 34. An order of remand cannot be passed on ipse dixit of the court. The provisions of Order 2 Rule 2 of the Code of Civil Procedure as also Section 11 thereof could be invoked, provided of course the conditions precedent there for were satisfied. We may not have to deal with the legal position obtaining in this behalf as the question has recently been dealt with by this Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas." On perusal of the records, we find that ample opportunity stands afforded by trial court to the defendant to examine further witnesses after his examination stood completed. The defendant has failed to avail such opportunity. Even otherwise remand is not an procedure easily to be resorted to as cited supra. All that Appellate court has felt necessary was to obtain (1) The opinion of the expert by comparison of signatures of P.W.3 with that of the attesting witness in the document Ex.P.1 and (2) The evidence of the said Unniappan. In the circumstances of the case, it safely can be stated that Order 41 Rule 27(b) stands attracted. 7. Accordingly, while setting aside the order under challenge, this court directs the lower appellate court to (1) Obtain the opinion of an hand writing expert by comparison of the signature of P.W.3 as found in proof affidavit and that found in Ex.P.1 and (2) Examine before itself, Unniyappan, alleged attesting witness to Ex.P.1. (3) The lower appellate court shall there upon decide the appeal on merits. 8. The lower appellate court is directed to dispose of the appeal within a period of four months from the date of copy of this order. No costs. Connected miscellaneous petition is closed.