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2021 DIGILAW 1144 (MAD)

Palanivel v. Karuppannan

2021-03-29

S.M.SUBRAMANIAM

body2021
JUDGMENT :- (Prayer: Civil Miscellaneous Appeal is filed under Order 43, Rule 1(u) r/w Section 151 of Civil Procedure Code against the judgment and decree dated 03.04.2019 passed by the learned II Additional Sub Judge, Salem in A.S.No.67 of 2017, allowing the judgment and decree dated 29.02.2016 passed by the learned I Additional District Munsif, Salem in O.S.No.2062 of 2004.) 1. The judgment and decree dated 03.04.2019 passed by the learned II Additional Sub Judge, Salem in A.S.No.67 of 2017, is under challenge in the present Civil Miscellaneous Appeal. 2. The plaintiffs are the appellants, defendants are the respondents and the suit was instituted for declaration and other reliefs. 3. The suit is decreed in favour of the plaintiffs and the defendants filed A.S.No.67 of 2017. 4. The First Appellate Court elaborately considered the facts and circumstances as well as the findings of the Trial Court and finally delivered the judgment, remanding the matter back for framing additional issues. Thus, the appellants are constrained to file the present Civil Miscellaneous Appeal. 5. Learned counsel for the appellants contended that the remand order was passed, directing the Trial Court to frame additional issues with respect to the validity of Power of Attorney Deed dated 05.03.2003; validity and enforceability of Sale Agreement executed by the first defendant in favour of the second defendant dated 06.03.2003; validity of Sale Deed executed by the first defendant in favour of the second defendant dated 18.03.2004 and also as to notice of termination of Power of Attorney; afford opportunity to both sides to produce additional evidence, if any, on additional issues and dispose of the matter as expeditiously as possible. 6. The question arises whether such remand is required in the given circumstances and whether the First Appellate Court is right in remanding the matter back to the Trial Court for framing additional issues. 7. This Court is of the considered opinion that remand is an exception. The Appellate Court is expected to dispose of the appeal on merits and in accordance with law and the lis must reach its finality and only on exceptional circumstances, if the First Appellate Court cannot dispose of the appeal on merits, then alone the option of remand is to be exercised. In the event of remanding the matter in a routine manner, the same would cause prejudice to the interest of the parties to the litigation. In the event of remanding the matter in a routine manner, the same would cause prejudice to the interest of the parties to the litigation. Remand will result in prolongation of the litigation and further the parties would get frustrated in the event of remand unnecessarily. 8. In this Regard, Section 107 of the Code of Civil Procedure, enumerates that the Appellate Court has got powers to frame additional issues, additional evidences etc., for the purpose of disposing the appeals. Order XLI, Rule 23 provides remand of case by the Appellate Court. 9. Such a remand is to be made by the Appellate Court subject to Rule 24 of Order XLI and if the suit is disposed of on certain preliminary issues, then alone an order of remand can be passed and once the Trial Court adjudicated the issues on merits and the documents were appreciated, then certain non-settled defects in the appreciation or omission or commission can be filled up by the Appellate Court instead of remanding the matter back to the Trial Court. In other words, non appreciation of certain documents or not framing certain issues would not be a ground to remand the matter back to the Trial Court and such additional issues can be framed by the Appellate Court itself and if necessary by accepting additional documents or by examining the witnesses, the Appellate Court is empowered to decide the matter finally. 10. Order XLI, Rule 24 enumerates that “Where evidence on record sufficient, Appellate Court may determine case finally-where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds”. Therefore, the Appellate Court is empowered to proceed on a different ground from that of the ground relied on by the Trial Court. The Appellate Court is empowered to frame additional issues or re-settle the issues or accept additional evidence or examine the witness if required by affording opportunity to the parties and decide the matter finally, instead of remanding the matter back to the Trial Court. The Appellate Court is empowered to frame additional issues or re-settle the issues or accept additional evidence or examine the witness if required by affording opportunity to the parties and decide the matter finally, instead of remanding the matter back to the Trial Court. When such powers are conferred on the Appellate Court under the Code of Civil Procedure, the Appellate Court is expected to be cautious, while remanding the matter back to the Trial Court. Of course, remanding the matter could be an easier way to dispose of the case. However, the Court should exercise restrain on such unnecessary remand, instead of deciding the matter on merits. 11. A conjoint reading of Rules 23, 23-A and 24 of Order XLI, brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit finally and only in case when the Trial Court has disposed of the suit on preliminary issues, then alone remand may be required and not in all circumstances where certain documents were not appreciated or issues were not made properly. 12. This being the scope of the provisions of the Code of Civil Procedure, in the present case, the First Appellate Court remanded the matter specifically for the purpose of framing additional issues. Such additional issues were also indicated in the judgment. While-so, the First Appellate Court ought to have framed such additional issues, accept the documents if any filed by the parties, examine the witnesses if any request is made and afford opportunity to all the parties and decide the matter finally. 13. This being the factum established, the judgment and decree dated 03.04.2019 passed by the learned II Additional Sub Judge, Salem in A.S.No.67 of 2017 is set aside. The matter is remanded back to the First Appellate Court for framing of additional issues or receiving additional documents or taking evidence, if any, such request is made by the parties and decide the issues on merits and in accordance with law and by affording opportunity to all the parties concerned, such an exercise is directed to be done within a period of ten months from the date of receipt of a copy of this judgment. The parties to the appeal suit are restrained from seeking unnecessary adjournments. Adjournments are to be granted only on genuine grounds and by recording reasons. Adjournments on flimsy grounds are to be rejected in limine by all Courts. The parties cannot be given privilege of getting adjournments for their benefit in order to prolong and protract the issues. 14. Accordingly, CMA No.1080 of 2020 is allowed. However, there shall be no order as to costs. Consequently connected miscellaneous petition is closed.