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2020 DIGILAW 1526 (MAD)

Malathi v. Sagadevan

2020-09-16

M.GOVINDARAJ

body2020
JUDGMENT : M. GOVINDARAJ, J. Prayer: Civil Miscellaneous Appeal filed under Order 43 Rule 1 of Code of Civil Procedure against the decree and judgment dated 27.07.2018 made in A.S. No. 12 of 2005 on the file of Subordinate Judge at Madurantakam allowing the appeal by remanding the appeal by setting aside the decree and judgment dated 10.01.2005 made in O.S. No. 404 of 1997 on the file of District Munsif, Madurantakam and directing the trial court to decide the core issue with regard to the partition along with other issues and by affording sufficient opportunity to both the sides including defendants 1 and 2 to adduce necessary evidence on the said issues. 1. Aggrieved over the order of remand made by the Lower Appellate Court remanding the matter after framing issues for fresh trial to the trial Court, the present Civil Miscellaneous Appeal has been preferred. 2. The appellants are the legal heirs of the deceased plaintiff. The plaintiff's mother filed a suit in O.S. No. 404 of 1997 before the District Munsif Court, Maduranthakam, for a decree, directing the defendants to execute the sale deed for half share in the suit property after receiving the value to be fixed by the Court. 3. According to the plaintiff, one Girija Ammal, had two children namely, the plaintiff and her brother Ratnakumar. Her mother Girija Ammal died intestate leaving behind herself and her brother as her legal heirs. Thus, she and her brother are entitled to half share each in the suit property. Her brother also died leaving behind his wife and daughter, defendants 1 and 2, as his heirs. The plaintiff requested the defendants 1 and 2 to sell their half share claiming pre-emption. But, the defendants 1 and 2 sold the property to the third defendant, not only their share, but a larger extent more than they possessed. The sale being invalid, the plaintiff filed the above suit. 4. Before the Trial Court, defendants 1 and 2 remained ex-parte. The third defendant alone contested the case by filing written statement. The suit was decreed on 10.01.2005. The third defendant preferred an appeal in which defendants 1 and 2 entered appearance and filed an interlocutory application under Order 41 Rule 27 of Code of Civil Procedure to receive additional documents. The Lower Appellate Court allowed the application. The third defendant alone contested the case by filing written statement. The suit was decreed on 10.01.2005. The third defendant preferred an appeal in which defendants 1 and 2 entered appearance and filed an interlocutory application under Order 41 Rule 27 of Code of Civil Procedure to receive additional documents. The Lower Appellate Court allowed the application. In view of receiving additional documents, the matter was remanded, back by its order dated 16.10.2006 in A.S. No. 12 of 2005, to the Trial Court giving opportunity for letting in evidence and to try the suit afresh. 5. The plaintiff filed a Civil Miscellaneous Appeal against the order of remand made by the Lower Appellate Court, which was allowed by this Court in its order passed in CMA No. 182 of 2007 dated 02.09.2010. 6. In the meanwhile, the order of remand was acted upon and the defendants 1 and 2 who were set ex-parte were permitted to participate in the trial and filed written statement. The first and second defendants have taken a plea of partition and separate possession and relied on the patta received as additional evidence by the Lower Appellate Court. In view of the absolute right claimed by the parties, the Lower Appellate Court held that the right of pre-emption does not arise and since the issue with regard to partition was not framed, considering the subsequent developments pending CMA No. 182 of 2007, decided to remand the matter in view of the power under Order 41 Rule 25 of Code of Civil Procedure. It was considered by the Lower Appellate Court that the issue of partition being a main issue and pre-emption had become meaningless, framed the following issues including partition and remanded the matter for fresh disposal after setting aside the decree dated 10.01.2005 passed in O.S. No. 404 of 1997: “Issues:- (i) Whether there was any partition effected as alleged by the defendants? (ii) Whether the plaintiff is entitled to right of pre-emption as per the provisions contained in Section 22 of Hindu Succession Act? (iii) Whether the plaintiff is entitled to the relief as prayed for in the suit? (iv) To what relief the plaintiff is entitled?” The above order of remand has been brought by the plaintiff before this Court in the above Civil Miscellaneous Appeal. 7. The facts are admitted and it is not necessary to traverse into the same. (iii) Whether the plaintiff is entitled to the relief as prayed for in the suit? (iv) To what relief the plaintiff is entitled?” The above order of remand has been brought by the plaintiff before this Court in the above Civil Miscellaneous Appeal. 7. The facts are admitted and it is not necessary to traverse into the same. The crux of the appeal is as to whether the subsequent developments pursuant to the order of remand, pending appeal against the same, have any effect on setting aside the order of remand. 8. A Division Bench of this Court in R. Vaidyalingam (Since deceased) and Others vs. Madras Secretariat Cooperative House Building Society Ltd. and Another, 1995 (1) LW 655 , considering the judgments of the Hon'ble Supreme Court and this Court, observed as under: “5. In this matter the argument of the learned Counsel for the appellant/petitioners is that the order dismissing the appeal is abated is only a dependent order and it was consequential to the order dated 17.3.1992 whereby the City Civil Court dismissed the application for condonation of delay of 30 days in seeking to set aside the abatement in bringing the legal representatives on record. Learned Counsel referred to the judgment of the Supreme Court in G. Ramegowda vs. Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897 . In that case, appeals were filed in a land acquisition matter before the High Court, but after the expiry of the period prescribed for appeals, applications for condoning delay were filed under Section 5 of the Limitation Act. The High Court condoned the delay and the order condoning delay was challenged before the Supreme Court. By the time the Supreme Court took up the appeals before it, the main appeals were disposed of by the High Court and an argument was advanced that the main appeals having been disposed of, nothing survived in the appeals before the Supreme Court. The said argument was rejected by the Supreme Court holding that the orders passed in the main appeals were only dependent and if the appeals before the Supreme Court were allowed, the orders in the appeals made by the High Court would have been set aside consequently. The Supreme Court said as follows: “(5) We might perhaps deal with the latter submission of Shri Veerappa first. The Supreme Court said as follows: “(5) We might perhaps deal with the latter submission of Shri Veerappa first. The fact that the main appeals are themselves, in the meanwhile, disposed of finally on the merits by the High Court would not by itself detract from and bar the consideration of the correctness of the order condoning the delay. This is an incidence of what are called ‘dependant-orders’ and if the order excusing the delays is itself set aside in these appeals, the further exercise, made in the meanwhile, by the High Court finally disposing of the appeals would be rendered nugatory. The submission of Shri Veerappa is therefore insubstantial. (6) A similar question was considered by this Court in Lakshmi vs. Maru Devi, ILR 37 Mad. 29. It was held in that case that with the reversal of the earlier order, the later order which depends for its validity upon the earlier one, ipso facto ceases to have any force. The proposition was reiterated in Kanakayya vs. Lakshmayya, by a single Judge and approved by a Division Bench in five Venkatarama Ayyar vs. Unnamalai Animal. (7) It has also been held by a Division Bench in Govinda Pathiyar vs. Ananthanarayana Iyer, (1955) 2 MLJ 665 , that the right to have an appeal against the order refusing leave on the ground that the plaint does not show a cause of action is not lost because the original application for leave to sue informa pauperis itself has been dismissed for non-payment of court fees. It was held that the rejection for non-payment of court fees is only a consequential order flowing from the non-compliance of a basic order and if the basis goes, the consequence also disappears. (8) In the instant case, the Lower Appellate Court, by its order dated 16.10.2006, remanded the matter to the Trial Court for fresh disposal. This order, as per the above judgments, shall be considered as the main order. As a consequence to the order of remand, the Trial Court had taken up the matter for fresh disposal, wherein the ex-parte orders passed against the defendants 1 and 2 were set aside and they filed a written statement giving rise to the issue of partition. This order, as per the above judgments, shall be considered as the main order. As a consequence to the order of remand, the Trial Court had taken up the matter for fresh disposal, wherein the ex-parte orders passed against the defendants 1 and 2 were set aside and they filed a written statement giving rise to the issue of partition. The above order of setting aside the ex-parte order, setting the defendants 1 and 2 and permitting them to file written statements are called “dependant orders” as held by the Hon'ble Supreme Court in G. Ramegowda vs. Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897 . If the main order of remand is set aside, the subsequent developments will disappear. As such, on setting aside the order of remand made by the Lower Appellate Court in A.S. No. 12 of 2005 dated 16.10.2006, the consequential order of setting aside the ex-parte order would be rendered nugatory.” 9. The validity of the order of remand dated 16.10.2006 was put to test before this Court in an appeal. With its reversal, the order passed subsequently ipso facto ceases to have any force. Thus, the order setting aside the ex-parte order in favour of the defendants 1 and 2 will disappear and the written statement filed by them raising the facts of partition will also of no effect. In that view of the matter, the Lower Appellate Court considering the subsequent developments and facts leading to the issue of partition and framing of an issue with regard to partition are unsustainable. The Lower Appellate Court ought to have considered as it stood prior to the order of remand dated 16.10.2006. It should have considered the matter in view of Order 41 Rules 27 to 29 of Code of Civil Procedure, more particularly, in compliance with the mandate of sub-rule 2 of Rule 27 and disposed of the appeal. 10. The present order under challenge dealt with the subsequent developments elaborately and literally diluted the case of the plaintiff while ordering remand. It is well settled that the Lower Appellate Court while ordering remand shall not exercise its power under Section 96 of Code of Civil Procedure and pass observations on merits. Such observations can be made only when the appeal is decided on merits. It is well settled that the Lower Appellate Court while ordering remand shall not exercise its power under Section 96 of Code of Civil Procedure and pass observations on merits. Such observations can be made only when the appeal is decided on merits. The order of Lower Appellate Court in so far as it touches upon the merits of the matter is not correct and justified. 11. As such, the order of remand under challenge in the above appeal is not sustainable as per the ratio laid down by the Hon'ble Supreme Court and Division Bench of this Court in the judgments cited above. 12. Therefore, the order dated 27.07.2018 passed in A.S. No. 12 of 2005 by the Subordinate Court, Maduranthakam is set aside and the matter is remanded back for disposal in the light of the above judgments. The Lower Appellate Court shall hear the appeal as it stood prior to 16.10.2006 after giving opportunity to both sides and pass order, within a period of three months from the date of receipt of a copy of this order. 13. The Civil Miscellaneous Appeal is ordered accordingly. No costs. Consequently, connected civil miscellaneous petition is closed.