IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.09.2010 CORAM THE HONOURABLE MR.JUSTICE B. RAJENDRAN C.M.A. No. 449 of 2007 D.P.Singaram .. Appellant/Plaintiff Versus S. Churchill .. Respondent/Defendent Appeal filed under Section Order 41 Rule 1 (u) of CPC against the order passed in A.S.No.17/2005, dated 30.06.2006, on the file of the Subordinate Judge, Dharmapuri against the Decree of the court of the District Munsif Dharmapuri, dated 30.11.2004 made in O.S.No.47/2004. For appellant : Mr. R. Subramanian For respondent : Mr. S. Jaganathan JUDGMENT This Civil Miscellaneous Appeal arises against the order of remand passed by the First Appellate Court in A.S. No. 17 of 2005 remanding the suit filed by the plaintiff/appellant herein in O.S. No. 47 of 2004 to the trial court for fresh consideration. 2. The suit was filed by the plaintiff/appellant for recovery of money based on a promisory note. The main contention and grievance of the Plaintiff/appellant is that the First Appellate Court has remanded the matter in a routine manner without even an application filed by the defendant/respondent for sending the document viz., promissory note for expert evidence. He would specifically contend that earlier, in the lower Court, the Defendant/Respondent herein filed an application to send for the document for the expert evidence, which was dismissed as not pressed and thereafter, as requested by both sides, the lower Court itself compared the signature and came to the conclusion that the signature in the suit promisory note and that of the admitted signature of the defendant are one and the same. Ultimately, the trial court decreed the suit as prayed for. Aggrieved against the decree and judgment passed by the Court below, the Defendant/respondent herein preferred the first appeal. But in the course of the appeal arguments, it was argued that there is a variation in the signatures found in the suit promisory note as well as the admitted signature of the defendant. In that process the First Appellate Court came to the conclusion that even though the lower Court compared the signature and arrived at the conclusion that it was the signature of the Defendant, the first Appellate Court was not in a position to compare the signature as there is https://hcservices.ecourts.gov.in/hcservices/ some difference, which can only be set at knot by seeking the assistance of an expert. Therefore, suo motto, the first Appellate Court remanded the matter to the trial court for comparing the signature by an expert and letting in evidence in this regard. In that process, the first Appellate Court has also set aside the well considered decree and judgment passed by the trial court, without assigning any reasons 3. The learned counsel for the appellant would contend that the First Appellate Court should not have remanded the matter without assigning any reason to set aside the decree and judgment passed by the trial court as per the amendment under Section 23A of CPC. If at all the first Appellate Court wanted the signature to be compared by an expert, it could have done it at the appellate stage without remanding the matter to the trial court for fresh consideration. In this context, the learned counsel for the appellant relied on the decision of this Court reported in V. Munisamy (deceased) and others Vs. M.Suguna, 2005 (1) CTC 107. In that Judgment, Justice P. Sathasivam (as he then was) has categorically held that there is no bar for the First Appellate Court to take further evidence or to appoint a Commissioner if so necessary and to try the appeal. In view of the aforesaid decision, there is no necessity for the First Appellate Court to remand the matter back to the trial Court . 4. The learned counsel for the defendant/respondent would contend that the variation in the signature in the suit promisory note was raised by the defendant/respondent at the earliest point of time in the written statement. The defendant/respondent herein has also filed an application to send the document for expert evidence, but unfortunately that application was dismissed as not pressed. However, by consent, both sides agreed that the trial Court could compare the signature and accordingly, the lower Court compared the signature and came to the conclusion that the Defendant has signed the promisory note and also decreed the suit. On appeal, before the First Appellate Court, the defendant/respondent had raised the plea that there is a variation in the signature of the defendant/respondent in the suit promisory note and therefore the First Appellate Court found that the Court is not in a position to compare the signature without assistance of an expert. When there is a divergent opinion by two Judges, viz., lower Court and the Appellate Court, the Appellate Court, taking a view that it is not possible to compare the signature, the first Appellate Court has rightly remanded the matter to the trial court for comparision of the signature in the suit promisory note by an expert and in the interest of justice, such expert opinion has to be obtained. Therefore, the learned counsel for the respondent would sustain the order of remand passed by the first Appellate Court. 5. Heard both parties. The point for consideration in this appeal is 1. whether the First Appellate Court is correct in remanding the matter for a fresh disposal for https://hcservices.ecourts.gov.in/hcservices/ comparison of signature by expert, when it could be done by the First Appellate Court itself? 2. whether the First Appelate Court has summarily remanded the matter without giving any finding for rejection of the order of the lower Court? 6. The question for determination in this case is the dispute between the parties in respect of the very execution of the promissory note itself. The defendant/respondent herein also questioned the variation or discrepancy in the signature found in the suit promisory note in the written statement. The defendant also filed an application to compare the disputed as well as admitted signature by an expert, but the said application was dismissed as not pressed. However, on the request made by both sides, the trial court itself made a comparision of both the signatures and found that the signature in the suit promisory is that of the defendant. Ultimately, after trial, the suit was decreed in favour of the plaintiff. As against the decree and judgment of the trial court, the Defendant preferred the first appeal. But in the Appellate Court, he would contend that there is a variation or discrepancy in the signature found in the suit promisory note. Under those circumstance, the first Appellate Court gave a finding that there is a discrepancy. However, it held that the Appellate Court by itself is unable to compare the disputed signature and come to a conclusion. Therefore, the First Appellate Court thought it fit to remand the matter to the trial court for a fresh adjudication, which is unwarranted. The first appellate Court ought to have sought the opinion of an expert and then decided the first appeal without remanding the matter to the trial Court. Moreover, the first appellate Court has merely remanded the matter to the trial court, without assigning any reason. This is against the provisions in Order 41 Rule 23A CPC, which reads as follows:- "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 same powers as it has under Rule 23". 7. Rule 23 would denote only in respect of preliminary issue, an order of remand is justified. After amendment - Rule 23A came to be inserted which states that when the re-trial is considered necessary by the First Appellate Court then a finding has to be given. In this case, unfortunately, no detailed finding was given by the first Appellate Court. Even otherwise, if the First Appellate Court felt that there is a necessity for appointment of an expert, it can very well seek the assistance of an expert to come to a just conclusion and it could even suo motto send the documents for expert opinion in the First Appellate Court itself after giving an opportunity for cross examination by both sides, if needed and could have arrived at a conclusion instead of remanding the matter to the Court below. https://hcservices.ecourts.gov.in/hcservices/ 8. In this context, I am fortified by the decision rendered by the Honourable Supreme Court reported in (P. Purushottam Reddy and another vs. Pratap Steels Ltd) (2002) 2 SCC 686 wherein in para-10 and 11, it was stated thus:- "10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23-A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before the 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23-A 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 https://hcservices.ecourts.gov.in/hcservices/ under Rule 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. 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 Manilal Nanavati v. Sushila Mahendra Nanavati4 (AIR at p. 399), it is well settled that inherent powers can be availed of ex debito 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 dehors Rules 23 and 23-A. 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 41 Rule 31 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 23-A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided. 11. In the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary. Neither Rule 23 nor Rule 23-A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule 25. So far as the objection as to maintainability of the suit for failure of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix A CPC is concerned, the High Court has itself found that there was no specific plea taken in the written statement. The question of framing an issue did not, therefore, arise. However, the plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the https://hcservices.ecourts.gov.in/hcservices/ right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to clause (c) of Section 16 of the Specific Relief Act, 1963 is concerned, the pleadings are there as they were and the question of improving upon the pleadings does not arise inasmuch as neither any of the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial court. Nevertheless, the parties and the trial court were very much alive to the issue whether Section 16(c) of the Specific Relief Act was complied with or not and the contentions advanced by the parties in this regard were also adjudicated upon. The High Court was to examine whether such finding of the trial court was sustainable or not — in law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material inasmuch as the High Court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration and decision." 9. It is also relevant to look into the decision of the Division Bench of this Court reported in (V. Munusamy (deceased) and others vs. M. Suguna) 2005 (1) CTC 107 wherein this Honourable Court held as follows:- "7. Based on the averment in the affidavit filed in support of I.A. No. 7745 of 1987, filed under Section 4 (1) of the Act, the trial court, after satisfying itself, gave a finding that the petitioner therein/appellant herein is entitled to purchase the suit property on such finding satisfies one of the conditions prescribed under Section 4 (1) of the Act. No doubt, the trial court has not arrived the value of the shae purchased by the transferee i.e., plaintiff. However, as rightly pointed out by the learned senior counsel for the appellant, on this ground, the lower appellate court set aside the order of the trial Court, including the finding of the entitlement of the appellant to purchase undivided share alienated by the family member to stranger alienee. As rightly https://hcservices.ecourts.gov.in/hcservices/ argued, the principles underlying the exercise of the power of remand by the appellate Court has not been properly applied or exercised by the lower appellate Court. Courts have held that only in exceptional cases where the judgment of the trial Court is wholly unintelligible or incomprehensible, the appellate Court can remand the matter for fresh disposal. Order 41, Rule 23 give ample power to the lower appellate Court to decide all issues, including appointment of a Commission for local inspection, secure finding from the trial Court. Even if certain mistakes crept in in the order of the trial court, the same can be rectified by the appellate Court itself, unless there are very compelling circumstances to make an order of remand. An order of remand should not be taken to be matter of course and the power of remand should be sparingly exercised. There should be always endeavour to dispose of the case by the appellate Court itself, when the commissions and omissions made by the first Court could be corrected by the appellate Court. In the case on hand, even if there is omission by the trial court regarding determination of the value of the share purchased by the plaintiff, in the light of the above discussion coupled with the mandate provided under Order 41 Rules 23 and 27, the appellate Court itself can ascertain the value either by appointment of a Commissioner or by getting a report from the trial Court. As said earlier, Section 4 91) of the Act gives option to any member of the family who is a co-sharer in respect of a dwelling house, a portion whereof has been transferred to a person who is not a member of such family, to purchase the share of such transferee if a suit for partition is filed by that transferee. On such option being exercised, the valuation of such share has to be determined. The crucial date for the purpose of fixing the valuation of the share of such transferee is the date when option to purchase in accordance with Section 4 of the Act is exercised by the defendant co-sharer. 10. In (Bhuvaneswari vs. Saraswathi Ammal) (2005) 3 MLJ 626, the Division Bench of this Court in para 3, held as follows:- "3. We went through the judgment of the lower appellate Court. As already noted, enough oral and documentary evidence had been let in on the side of the plaintiff as well https://hcservices.ecourts.gov.in/hcservices/ as on the side of the defendant. An order of remand cannot be for the mere purpose of remanding a proceeding to the lower Court. It is governed by the provisions of the Code of Procedure, commencing from Order 41 Rule 22 onwards. The appellate Judge's view that in order to enable the parties to have the suit properties identified, an Advocate Commissioner had to be appointed and for that purpose the suit must be remanded to the trial court, in our considered opinion, is not warranted on the facts of the case. If it is possible for the appellate Court to evaluate the evidence made available on record and come to its own conclusion one way or the other, then it is open to the lower appellate Court to come to the aid of the parties for filling up a lacuna which is found wanting in the recoreds. 11. In (M/s. Sekaran Real Estates, a Partnership firm, by Managing Partner K. Chandrasekaran vs. Punjab National Bank, Mylapore Branch, Mylapore, Madras-4, by its Manager) 2000 (I) CTC 613 wherein in para No.4, it was held as follows:- "It is clear from the above decisions as well as the provisions contained in Order 41, Rules 23 to 29, C.P.C. that duty is cast on the appellate Court to find that the decree of the trial court should be set aside. Even the fact that there are some defects or infirmities in the reasoning of the trial court is not a ground for the appellate court to remand the same to the trial court. The appellate Court should come to the clear conclusion that the findings of the trial court cannot be supported and must be set aside. Only in exceptional cases where the judgment of the trial court is wholly unintelligible or incomprehensible that the apprllate Court can remand the suit for fresh trial. A reading of the judgment of the appellate Court would show that it has not at all considered the judgment of the trial court nor pointed out infirmity or defect in the conclusion. Further, the learned appellate Judge has not borne in mind any of the principles mentioned above. A careful scrutiny of the judgment also shows that he never felt that the judgment of the trial court must be set aside or reversed. After allowing the amendment petition, the appellate court has simply directed the trial court to try the matter once again, after affording further opportunity to the parties, the directions contained in the order of remand are vague and too general in https://hcservices.ecourts.gov.in/hcservices/ character. The fact that the lower appellate Court has not considered the reasoning or merits of the decree of the trial court has not been disputed by the learned counsel for the respondent-Bank. 12. In (Kannathal and four others vs. Arulmighu Kanniammal Karuppasamy Thirukoil, Pothanur Chettipalayam, Coimbatore, rep. by its Executive Officer and another) 2007 (2) CTC 49, a learned single Judge of this Honourable Court held in para No. 15 and 17 as follows:- "15. It is also settled law that if the issues arising in the suit could be decided on the evidence available on record, the lower Appellate Court itself should decide the case on merits without unnecessarily ordering remand. A perusal of the pleadings in the case shows that all the necessary pleadings are available on record. Even if the Lower Appellate Court was of the opinion that it was necessary to give an opportunity to the plaintiff to amend the pleadings, that opportunity could have been given in the First Appellate Court itself and for that purpose, the remand is not needed. 16...... 17. In the light of the law laid down by the Apex Court in the decisions reported in Ishwardas vs. State of Madhya Pradesh and others, AIR 1979 SC 55 and P. Purusottam Reddy and another vs. Pratap Steels Limited, 2002 (2) ctc 686, this Court is of the considered view that the Lower Appellate Court has committed an error of law in remanding the matter only for the purpose of affording an opportunity to the plaintiff to amend the pleadings and to adduce additional evidence. As laid down by the Apex Court it is not proper for the Appellate Court to remand the case to enable the parties to make good their lapse. 13. In (Sujatha vs. Vijay Anand and another) (2007) 4 MLJ 447, a learned single Judge of this Court in Para No.15 and 16, held as follows:- "15. In the case on hand, the learned District Judge has not reversed or set aside the finding of the trial court. It is only to give opportunity to the plaintiffs to prove the Will dated 12.08.1982, the lower Appellate Court has remanded that suit to the trial court. The procedure adopted by the learned District Judge is not correct. The District Judge himself got jurisdiction and powers under Order 41 and Section 151 of C.P.C. https://hcservices.ecourts.gov.in/hcservices/ 16. I am of the opinion that the order of remand of the suit cannot be sustained and therefore, the judgment and decree of the learned District Judge remanding the suit to the trial court are set aside. The learned District Judge is directed to take the first appeal and I.A. No. 53 of 2001 on its file and give opportunity to both parties with regard to the proof of the said document dated 12.08.1982 and dispose of the first appeal on merits. 14. In the aforesaid decisions, it was categorically held that order of remand should not be passed as a matter of course and without giving a finding as to how the