IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 FAO.No. 129 of 2006() --------------------- AS.21/2001 of SUB COURT, MANJERI OS.25/1995 of MUNSIFF COURT, MANJERI .................... APPELLANT/RESPONDENT/PLAINTIFF -------------------------------------------------- KUMMALI MOHAMMED, S/O.KUMMALI AYDRUS, KALIKAVU AMSOM, THRIKKUNNASSERI DESOM, NILAMBUR TALUK. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE RESPONDENT(S): APPELLANTS/DEFENDANTS -------------------------------------------------------------------------- 1. KANHIRAMPARA KAMMUKUTTY, S/O.K.P.KUNHALAN, KALIKAVU AMSOM, THRIKKUNNASSERI, P.O.KOORAD, VIA. VANIYAMBALAM, NILAMBUR TALUK. 2. K.P.KUNHALAN ALIAS CHERIYON, S/O.K.P.KAMMUKUTTY, DO. DO. 3. K.P.MUHAMMED ALIAS MANU, S/O.KUNHALAN, DO. DO. 4. K.P.ALAVIKUTTY, S/O.K.P.KUNHALAN, DO. DO. ADV. SRI.K.M.SATHYANATHA MENON FOR R1 SRI.K.M.SATHYANATHA MENON THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = F.A.O.No.129 of 2006 = = = = = = = = = = = = = = Dated this the 30 th day of July, 2009 JUDGMENT The plaintiff in O.S.No.25 of 1995 on the file of the Munsiff's Court, Manjeri is the appellant in this appeal filed under Order 43 Rule 1(u) of the Civil Procedure Code. The appellant challenges the remand order passed by the lower appellate court as per its judgment dated 31.1.2006 in A.S.No.21 of 2001. The aforesaid suit was one for a perpetual injunction restraining the defendants from trespassing into the plaint schedule property. The suit was resisted by the 4 defendants who filed written statement. The trial court framed three issues for trial which included an issue as to whether the plaintiff is entitled to the injunction as prayed for. 2. On the side of the plaintiff two witnesses were examined as PW1 and PW2 and Exts.A1, A2 series and A3 were got marked. On the side of the defendants Exts.B1 and B2 were got marked. No oral evidence was adduced on the side of the defendants. Exts.C1 to C4 are the reports and plan submitted by F.A.O.No.129 of 2006 2 the Advocate Commissioner deputed by the trial court. 3. The learned Munsiff, after trial, as per judgment and decree dated 31.7.2001 decreed the suit as prayed for. On appeal preferred by the defendants before the lower appellate court as A.S.No.21 of 2001, that court has set aside the judgment and decree passed by the trial court and has remanded the matter to the trial court for fresh disposal mainly for the reason that the trial court did not frame an issue as to whether the plaintiff was in possession of the plaint schedule property as on the date of the suit and that the trial court has found that the possession of the disputed property is with the plaintiff which is not justifiable in view of the materials available on record. Those two reasons were hardly valid reasons to justify an exercise of the power under Order 41 Rule 23 C.P.C. The issue already framed as to whether the plaintiff was entitled to the injunction prayed for was more than sufficient because it is only if the plaintiff is able to show that he was in possession of the suit property on the date of the suit, would he be entitled to the injunction prayed for by him. Similarly, if the finding of the trial court regarding the possession is either erroneous or F.A.O.No.129 of 2006 3 unsupportable by the evidence on record, the lower appellate which is also a court of facts and which by virtue of Section 107 C.P.C has all the powers of the trial court, can record its own finding regarding the question of possession. A remand of the case to the trial court for that purpose was unwarranted. As far as possible, the appellate court should avoid a remand unless it is absolutely essential (See Sundaresan Nair v. Dr.Krishnankutty Nair (2007(2) KHC 414). This is a case in which there was a trial before the Munsiff's court and the parties had adduced evidence in respect of their respective contentions. In a case where there has already been a trial on evidence before the court of first instance, the appellate power of remand should not be exercised merely because the appellate court is of the view that the parties who could lead better evidence have failed to do so. (See India Army and Police Equipment v. Kanadia Brothers - 1968 KLT (SN) 19 (SC) and Sekharan Nambiar v. Ramanunni Nambiar - 1992(1) KLT429. Instead of deciding the appeal on the evidence already on record, the lower appellate court was being captious in finding fault with the trial court in the framing of issues and remanding the case. It F.A.O.No.129 of 2006 4 amounts to abdication of the powers of the appellate court. The remand order is accordingly set aside and the appeal filed before the lower appellate court is restored to file and the appellate court shall dispose of the appeal on merits on the evidence already on record and untrammeled by the observations hereinabove as well as in the impugned remand order. This court will not preclude the appellate court from receiving additional evidence in case that court is of the opinion that the facts of the case warrant reception of additional evidence. This appeal is allowed as above. No costs. The parties shall appear before the lower appellate court on 24.8.2009 without any further notice. Dated this the 30 th day of July, 2009. V. RAMKUMAR, JUDGE sj