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2015 DIGILAW 2739 (MAD)

M. Dhanakumar v. C. Vivekanandan

2015-08-07

V.M.VELUMANI

body2015
JUDGMENT : This Civil Miscellaneous Appeal has been filed by the appellant against the Judgment and Decree of the lower appellate Court, dated 27.11.2012, made in A.S.No.112 of 2012 on the file of Principal District Judge, Tiruchirapalli, remanding the suit in O.S.No.259 of 2004, on the file of Principal Subordinate Judge, Tiruchirapalli, for fresh disposal. 2. The facts of the case: (i) The appellant filed a suit in O.S.No.259 of 2004 before the Principal Subordinate Court, Tiruchirapalli, against the second respondent, for specific performance of sale agreement dated 14.05.1998, in respect of the suit property. According to the appellant, one Natesan was the original owner of the suit property. The second respondent is the adopted son of said Natesan. While Natesan was alive, he entered into an agreement of sale, dated 14.05.1998 with the appellant agreeing to sell the suit property, measuring an extent of 2 acres and 36 cents at the rate of Rs.500/-per cent, for a sale consideration of Rs.1,18,000/-and received a sum of Rs.75,000/-as advance. The said Natesan agreed to sell the property in order to discharge earlier debts obtained by him and to meet the medical expenses. On 17.09.1998, the said Natesan died. (ii) The second respondent approached the appellant for a sum of Rs.15,000/-, to meet the funeral expenses of the said Natesan, undertaking to execute the sale deed in favour of the appellant. Subsequently, the second respondent received money on various dates, but failed to execute the sale deed. In these circumstances, the appellant filed O.S.No.259 of 2004, for specific performance of agreement of sale. The second respondent remained ex parte before the trial Court. (iii) The learned Principal Subordinate Judge, Tiruchirapalli, recording the evidence of the appellant, marking documents and considering the pleadings and oral and documentary evidence, decreed the suit, by Judgment and Decree, dated 29.07.2004. (iv) According to the first respondent, the said Natesan had already sold the property to him. The appellant and the second respondent colluded with each other and obtained a decree for specific performance. He filed Civil Revision Petition before this Court, for permission to challenge the said decree. This Court directed him to file an appeal in competent Court after obtaining leave to file appeal. In these circumstances, after obtaining leave, he filed A.S.No.112 of 2012 before the Principal District Court, Tiruchirapalli. He filed Civil Revision Petition before this Court, for permission to challenge the said decree. This Court directed him to file an appeal in competent Court after obtaining leave to file appeal. In these circumstances, after obtaining leave, he filed A.S.No.112 of 2012 before the Principal District Court, Tiruchirapalli. (v) Before the lower appellate Court, the first respondent contended that O.S.No.259 of 2004 is filed on forged agreement of sale. The second respondent is not the adoptive son of Natesan. The appellant and the second respondent are the sons of Natesan's brother. The appellant suppressed various litigations in respect of the suit property, especially, the suit filed by Dhayanithi, wife of Natesan, who is the sole legal heir of Natesan and suit filed by them against the said Dhayanithi. One Senthilkumar also filed a suit against the appellant, the second respondent and one Murugesan. (vi) Both the appellant and the first respondent filed petitions under Order 41 Rule 27 C.P.C. to receive documents. The learned Principal District Judge held that number of suits were filed on various grounds, but no suit was filed for declaration of title. The learned Principal District Judge held that the suit filed by the appellant is for specific performance of agreement of sale. In the suit, title of property cannot be decided and the first respondent is alleging that agreement of sale is a forged one. In the circumstances, the learned Principal District Judge, set aside the Judgment and Decree, dated 29.07.2004, made in O.S.No.259 of 2004 and remanded the suit for fresh disposal after impleading the first respondent as party to the suit. 3. Against the said Judgment and Decree, dated 27.11.2012, the appellant has filed the present appeal. 4. In the circumstances, the learned Principal District Judge, set aside the Judgment and Decree, dated 29.07.2004, made in O.S.No.259 of 2004 and remanded the suit for fresh disposal after impleading the first respondent as party to the suit. 3. Against the said Judgment and Decree, dated 27.11.2012, the appellant has filed the present appeal. 4. The learned counsel for the appellant contended that, (i) the Judgment and Decree of lower appellate Court remanding the suit is contrary to law; (ii) the appeal by first respondent, who is the third party to the suit, is not maintainable and the lower appellate Court erred in not dismissing the appeal and confirming the Judgment and Decree of the trial Court; (iii) the suit filed by the appellant against the second respondent is for specific performance of agreement of sale, in which, the first respondent cannot claim to establish his alleged title; (iv) the lower appellate Court failed to see that the claim of the first respondent is beyond the scope of suit; (v) the alleged ownership of suit property was negatived by the Judgment made in O.S.No.2222 of 1981 and the same was confirmed in A.S.No.36 of 1983; (vi) the first respondent is the brother-in-law of Natesan and the alleged sale in his favour is only sham and nominal and it is only a benami transaction. The first respondent did not get any title or interest in the suit property; (vii) the said Natesan executed a Will in favour of the second respondent. After the death of Natesan, the Will was proved in O.S.No.334 of 1999 and the second respondent became owner of the suit property. (viii) the lower appellate Court has not given any reason for setting aside the Judgment of the trial Court; and (ix) by remanding the suit, the lower appellate Court has directed the trial Court to decide a issue, which is beyond the scope of relief sought for in the suit and prayed for allowing the appeal. 5. In support of his submission, the learned counsel for the appellant relied on the Judgment of the Hon'ble Apex Court reported in 2002 (2) LW 816 [P.Purushottem Reddy and another Vs. M/s.Pratap Steels Ltd.], wherein at paragraph 8, it has been held as follows: "8. .... 5. In support of his submission, the learned counsel for the appellant relied on the Judgment of the Hon'ble Apex Court reported in 2002 (2) LW 816 [P.Purushottem Reddy and another Vs. M/s.Pratap Steels Ltd.], wherein at paragraph 8, it has been held as follows: "8. .... In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate Court hearing an appeal against a decree if (i) the trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate Court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra v. Sushila (AIR 1965 SC 365. at p. 399), it is well settled that inherent power can be availed of ex debite justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the Court may now exercise the power of remand de hors the Rules 23 and 23A, to wit, the superior Court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 11 Rule 31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided." 6. Per contra, the learned counsel for the first respondent contended that, (i) the appellant and the second respondent colluded together and obtained a decree for specific performance of agreement of sale. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided." 6. Per contra, the learned counsel for the first respondent contended that, (i) the appellant and the second respondent colluded together and obtained a decree for specific performance of agreement of sale. On the date of agreement of sale, the said Natesan was not owner of property, as he has already sold the property to the appellant; (ii) the appellant and the second respondent forged the agreement of sale and obtained the decree of specific performance; (iii) the appellant suppressed the previous litigations between the parties and others in respect of the suit property; (iv) the first respondent was not a party to the suit and the order of remand is a proper course to decide the issue on merits, as the first respondent can place all the facts and documents, for proper decision on merits; (v) the second respondent is not the legal heir of the deceased Natesan. Natesan's wife Dhayanithi is his only legal heir; (vi) in O.S.No.334 of 1999 and O.S.No.625 of 1999, it was held that the second respondent is not adoptive son of Natesan and "Will" was held to be not genuine; and (vii) in O.S.No.1385 of 1999, the second respondent has stated that he was the cultivating tenant and paying lease amounts to the first respondent. 7. In support of her submission, the learned counsel for the first respondent relied on the order passed by this Court, dated 22.01.2009, made in M.P.No.1 of 2008 in C.R.P.Sr.No.56354 of 2008, wherein at paragraph 6, it has been held as follows:- "6. The nullity of the decree can be established in the appellate court after getting leave to file appeal. Therefore, the petitioner is not entitled to get leave of this Court to file revision petition under Article 227 of the Constitution of India. Consequently, the petition seeking leave to file revision petition under Article 227 of the Constitution of India is dismissed. Petitioner is at liberty to file leave to file appeal and establish his right by challenging the judgment and decree in O.S.No.259 of 2004, dated 29.7.2004, if so advised." 8. Consequently, the petition seeking leave to file revision petition under Article 227 of the Constitution of India is dismissed. Petitioner is at liberty to file leave to file appeal and establish his right by challenging the judgment and decree in O.S.No.259 of 2004, dated 29.7.2004, if so advised." 8. The learned counsel for the first respondent finally contended that, in case the first appeal is remanded to the lower appellate Court, the first respondent may be given an opportunity to let in evidence by filing documents relied on by him. 9. I have heard the learned counsel appearing for the parties, considered the arguments put forth by them and perused the materials available on record. 10. The present appeal is against the order of remand by the learned Principal District Judge, Trichirapalli, ordering impleadment of first respondent and directing the Principal Subordinate Judge to decide the issue afresh after affording an opportunity to let in evidence to the parties. 11. In the present case, the appellant has filed O.S.No.259 of 2004 against the second respondent for specific performance of agreement of sale. The suit was decreed ex parte and the Court executed the sale deed in favour of the appellant. The first respondent is a third party to the suit. He claims title to the suit property and alleges forgery by appellant and the second respondent. From the Judgment of the lower appellate Court, it is seen that both the appellant and the first respondent have filed petitions for filing documents under Order 41 Rule 27 CPC. 12. The lower appellate Court has power to remand the case as per Order 41 Rules 23 and 23-A C.P.C. At this juncture, it is relevant to extract Order 41 Rules 23 and 23-A C.P.C. "23. 12. The lower appellate Court has power to remand the case as per Order 41 Rules 23 and 23-A C.P.C. At this juncture, it is relevant to extract Order 41 Rules 23 and 23-A C.P.C. "23. Remand of case by Appellate Court.-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 re-admit 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 evidence during the trial after remand. 23A. Remand in other cases.-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." 13. As per the abovesaid Rules, while reversing the decree of trial Court, the lower appellate Court may if it thinks fit a re-trial is necessary, it can remand the case to the trial Court, for fresh trial. The first appellate Court may direct what issue or issues shall be tried. It is well settled that the lower appellate Court cannot remand a matter mechanically or in an arbitrary manner. The order of remand should be based upon sound and reasonable grounds. The lower appellate Court without sufficient cause, should not order remand of the suit. The lower appellate Court can exercise the power of remand, only on the finding that the Judgment and Decree of the Trial Court, are erroneous on facts or on law and therefore, the same shall liable to be reversed or set aside. As per Rule 24, if the evidence on record is sufficient for the lower appellate Court to decide the issues on merits, the lower appellate Court must decide the case by itself on merits. By remand, litigation is kept pending. As per Rule 24, if the evidence on record is sufficient for the lower appellate Court to decide the issues on merits, the lower appellate Court must decide the case by itself on merits. By remand, litigation is kept pending. While ordering remand, the lower appellate Court must follow the procedure laid down in Order 41 Rules 23 to 27 CPC, in order to avoid unnecessary pendency of cases. 14. The lower appellate Court holding that the title of the first respondent cannot be decided in the suit for specific performance, without considering the petitions filed by the appellant and the first respondent, set aside the Judgment and Decree of the Trial Court and remanded the suit to Trial Court, for fresh disposal. The order of remand and permission granted for impleading the first respondent and to let in evidence, is contrary to the provisions of Order 41 Rules 23 to 25 C.P.C. The learned Principal District Judge, Trichirappalli, has not given any finding as to whether the Judgment and Decree of the Trial Court are erroneous on facts or on law. The Judgment relied on by the learned counsel for the appellant, reported in 2002 (4) LW 816 [supra], is squarely applicable to the facts of the present case. 15. The learned Principal District Judge, Trichirapalli, ought to have considered and passed orders on the petitions filed by the parties under Order 41 Rule 27 C.P.C. and decided A.S.No.112 of 2012 on merits. The learned Principal District Judge, Trichirapalli, has not properly exercised the power under Order 41 Rules 23 to 25 C.P.C. 16. For the reasons stated above, this Civil Miscellaneous Appeal is allowed and the matter is remanded to the lower appellate Court, for deciding A.S.No.112 of 2012, on merits after considering and passing orders on the petitions filed by the appellant and the first respondent, under Order 41 Rule 27 C.P.C. No costs. Consequently, connected Miscellaneous Petition is closed.