IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 FAO.No. 347 of 2007() --------------------- AS.13/2007 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.1131/2004 of II ADDL.M.C.,TRIVANDRUM .................... APPELLANTs/RESPONDENT/DEFENDANTS: ---------------------------------------------------------------- 1. ANITHA, W/O.JAYAKUMAR, SUDHALAYAM, VANDITHADOM, VELLAYANI, THIRUVANANTHAPURAM. 2. JAYAKUMAR, AGED 46, RESIDING AT DO. BY ADV. SRI.V.S.BABU GIREESAN RESPONDENT: APPELLANT/PLAINTIFF: ----------------------------------------------------------- PUSHPARAJAN, S/O.KRISHNAN, RESIDING AT PRABHA SADANAM, VANDITHADOM, VELLAYANI, THIRUVANANTHAPURAM. BY ADV. SRI. V. SURESH THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 11/02/2008 ALONG WITH FAO NO. 370 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== F.A.O. NO. 347/07 & 370 OF 2007 =============================== Dated this the 11th day of February,2008 JUDGMENT Appellant in F.A.O.370/2007 is the plaintiff and appellants in F.A.O.347/2007 are the defendants in O.S.1131/2004 on the file of Munsiff Court,Thiruvananthapuram. in Suit was filed for a permanent prohibitory injunction restraining defendants from causing any impediment to the use of the plaint B schedule property. Defendants resisted the suit contending that plaintiff has no right over the plaint B schedule property. Learned Munsiff after recording the evidence of the witnesses and hearing the arguments, dismissed the suit. It was challenged before District Court, Thiruvananthapuram in A.S.13/2007. I.A.1899/2007 was filed by in the appeal by appellant plaintiff seeking permission to amend the plaint under Order VI Rule 17 of Code of Civil Procedure incorporating an alternative plea that even if plaint B schedule F.A.O.347 & 370/07 2 property is part of the property of defendants, appellant has prescribed a right of easement through that property. Learned Additional District Judge did not consider the correctness of the findings of the learned Munsiff. Instead finding that in the written statement there is a statement that inspite of the dispute raised, respondents are prepared to give a way having a width of three feet through the southern portion of their property, learned District Judge held that in the nature of the case, suit is to be remanded to the trial court. It was also found that in view of the order of remand, plaintiff is entitled to move an application under Order VI Rule 17 before the trial court. Learned District Judge also directed the trial court to consider the question of bar of the suit both under Rule 2 of Order 11 as well as Rule 4 of Order XXIII of Code of Civil Procedure. Aggrieved by the order of remand, both plaintiff and defendants have filed the appeal. F.A.O.347 & 370/07 3 2. The following substantial question of law was formulated while admitting the appeal. Whether first appellate court was justified in remanding the suit to the trial court with a direction to dispose the suit afresh including the question of bar of the suit under Rule 4 of Order XXIII and Rule 2 of Order II ofCode of Civil Procedure, without hearing the first appeal on merit and also deciding whether the application for amendment filed before first appellate court is to be allowed or not. 2. Learned counsel appearing for appellant and respondents were heard. 3. Both the learned counsel appearing for appellants (plaintiff and defendants) submitted F.A.O.347 & 370/07 4 that first appellate court did not consider the appeal on merits and instead remanded the suit back to the trial court taking note of a contention in the written statement where the defendants have expressed their willingness to permit the plaintiff to use a portion of the property having their part and therefore the order of remand may be set aside. 4. On hearing the learned counsel and on going through the judgment, there is force in the submission of the learned counsel. First appellate court did not consider the appeal on merit at all. Though first appellate court remanded the suit with a direction to consider whether the suit is barred under Rule 2 of Order II or Rule 4 of Order XXIII, admittedly no such plea was raised in the written statement. When an application for amendment of the plaint raising an alternative plea was filed before the first appellate court, it is for the first appellate court to decide whether plaintiff is to be permitted to amend the plaint as sought for. It is not proper for the first F.A.O.347 & 370/07 5 appellate court to remand the suit for considering that application and that too with a direction that a fresh application is to be filed before the trial court after remand. 5. It is trite law that an order of remand cannot be passed by the appellate court as a matter of course. So also power of remand is to be exercised sparingly. Before an order of remand is passed, appellate court must see whether case can be finally decided on the pleadings and evidence. Unfortunately first appellate court without considering the relevant aspects, as a matter of course remanded the suit. In such circumstance, the order of remand passed by Additional District Judge, Thiruvananthapuram in A.S.13/2007 is set aside. A.S.13/2007 is remitted to the Additional District Court,Thiruvananthapuram for fresh disposal in accordance with law. Learned Additional District Judge shall hear the appeal on merits, including the application filed by appellant for amendment of the plaint under Order F.A.O.347 & 370/07 6 VI Rule 17 and dispose the appeal on merits. Parties are directed to appear before the first appellate court on 13.3.2008. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006