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2023 DIGILAW 997 (MAD)

P. Rajendran v. P. Palanivel

2023-03-10

N.SATHISH KUMAR

body2023
JUDGMENT (Prayer: This Civil Miscellaneous Appeal is filed under Order 43 Rule 1(u) of C.P.C., against the judgment and decree made in A.S.No.14 of 2018 dated 04.04.2022 on the file of Additional District Court, (FTC), Theni, remanding the judgment and decree made in O.S.No.11 of 2013, dated 20.06.2017, on the file of the Subordinate Court, Theni.) This Civil Miscellaneous Appeal is filed challenging the judgment and decree of the Additional District Court, (FTC), Theni, made in A.S.No.14 of 2018 dated 04.04.2022, to remand the matter to the trial Court. 2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court. 3. The brief facts, leading to the filing of this Civil Miscellaneous Appeal, are as follows:- The plaintiffs have laid a suit in O.S.No.11 of 2013 for declaration and injunction against the defendant. The suit has been laid on the basis of the sale deed dated 24.06.1952, followed by revenue records and sale deed dated 05.03.2010. The suit is proceeded as if based on the above sale deed, the plaintiffs become absolute owner of the property and enjoyment of the same. The defendant without any title to the property, prohibiting the plaintiffs'' possession. Hence, the suit has been filed. 4. Before the trial Court, the defendant denying the title of the plaintiffs and the revenue records also disputed by the defendant. 5. Based on the above pleadings, the trial Court has framed the following issues: “1. Whether the 2nd item of the suit property belongs to the first plaintiff, whether the 3rd item of suit property belongs to the 2nd plaintiff and whether the fourth item of property belongs to the third plaintiff? 2. Whether the suit schedule property belongs to the defendant? 3. Whether the plaintiffs are entitled to the relief of permanent injunction? 4. To what other reliefs the plaintiffs are entitled to?” 6. On the side of the plaintiffs, one witness was examined as P.W.1 and 44 documents were marked as Ex.A.1 to Ex.A.44. On the side of the defendant, one witness was examined as D.W.1 and 16 documents were marked as Ex.B1 to B.16. 7. The trial Court after appreciating the entire evidence has finally dismissed the suit. Challenging the same, the first appeal was filed before the Additional District Court, (FTC), Theni in A.S.No.14 of 2018. On the side of the defendant, one witness was examined as D.W.1 and 16 documents were marked as Ex.B1 to B.16. 7. The trial Court after appreciating the entire evidence has finally dismissed the suit. Challenging the same, the first appeal was filed before the Additional District Court, (FTC), Theni in A.S.No.14 of 2018. During the pendency of the appeal, an application for reception of additional evidence was filed before the Additional District Judge, (FTC), Theni in I.A.No.3 of 2019 for marking the release deed dated 04.05.1981. 8. The learned Additional District Judge, (FTC), Theni allowed the said application. While allowing the said application, the Additional District Judge set aside the decree and judgment of the trial Court, even without going into the merits of the matter and therefore, the judgment and decree of the appellate Court has to be set aside merely on the ground that the additional evidence is allowed and the matter has been remanded back to the trial Court once again, to decide the issue afresh, after giving opportunity to the plaintiffs. Challenging the same, the present appeal came to be filed. 9. Heard the learned counsel appearing on either side and perused the materials available on record. 10. On a perusal of the order of the first appellate Court, this Court is of the view that such order passed by the first appellate Court in the rank of the District Judge is nothing, but non-application of mind. Such order has been passed without adverting to the relevant provisions of law, while allowing an application for additional evidence during the appeal stage. It is relevant to note that under Order 41 Rule 23 of C.P.C., the appellate Court can remand the matter when the trial Court has disposed of the suit only upon a preliminary point and the decree is reversed in the appeal, the appellate Court may by order remand and may further direct what issue or issues shall be tried in the cases so remanded. 11. Order 41 Rule 23 of C.P.C., deals with the remand 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. In respect of other matters, proviso to Order 41 Rule 23A of C.P.C., applies while remanding the matter by the appellate Court. 11. Order 41 Rule 23 of C.P.C., deals with the remand 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. In respect of other matters, proviso to Order 41 Rule 23A of C.P.C., applies while remanding the matter by the appellate Court. Order 41 Rule 25 of C.P.C., deals with the remand where the Court from whose decree the appeal is preferred has omitted to frame or try any issue or to determine any question of fact which appears to the appellate Court essential to the right decision of the suit upon the merits, the appellate Court may if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case the appellate Court shall direct the trial Court to take the additional evidence required. Only in the circumstances narrated in Order 41 Rules 23 to 25 of C.P.C., the appellate Court can pass an order of remand. Whereas in the present case, remand has not been passed as per Order 41 Rules 23 to 25 of C.P.C. 12. It appears from the records that the plaintiffs have filed an application for reception of additional evidence under Order 41 Rule 27 to file a release deed. The appellate Court has allowed the application for reception of additional evidence. The mode of taking additional evidence as contemplated under Order 41 Rule 28 is that wherever the additional evidence is allowed by the appellate Court, the appellate Court itself record such evidence or direct the trial Court from whose decree the appeal is preferred or any other subordinate Court to record such evidence and forward the said evidence to the appellate Court for final disposal of the appeal. Therefore, when there was a specific provision available under the Code dealing with additional evidence, the appellate Court ought not to have travelled beyond the procedure established under the law by setting aside the well considered decree and judgment of the trial Court, without even venturing into the factual aspect and the issues framed by the trial Court. 13. In such view of the matter, the judgment and decree of the Additional District Court, (FTC), Theni, made in A.S.No.14 of 2018 dated 04.04.2022, is set aside. 13. In such view of the matter, the judgment and decree of the Additional District Court, (FTC), Theni, made in A.S.No.14 of 2018 dated 04.04.2022, is set aside. The appellate Court is directed to follow the procedure contemplated under Order 41 Rule 28 of C.P.C., and the appellate Court shall itself can record the evidence and frame necessary points for consideration and dispose the appeal on its own merits and in accordance with law. 14. With the above observations, this Civil Miscellaneous Appeal is allowed and the appellate Court viz., the Additional District Judge, (FTC), Theni is directed to record the additional evidence within a period of one month from the date of receipt of a copy of this judgment and dispose of the appeal on merits, after framing necessary issues for consideration, within a period of two months thereafter. No costs. Consequently, connected miscellaneous petition is also closed.