IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.01.2010 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.M.A.No.607 of 2004 and C.M.P.No.3079 of 2004 Ganesa Achari ... Appellant/ Defendant vs. Sagunthala Ammal ... Respondent/ Plaintiff Civil Miscellaneous Appeal is filed under order 43 Rule 1(u) of CPC against the Judgment and Decree of the learned Additional Subordinate Judge of Chengalpattu dated 29.08.2003 in A.S.No.54 of 2002 reversing the Judgment and Decree of the learned District Munsif of Chengalpattu dated 11.12.2001 in O.S.No.663 of 1993. For appellant : Mr.V.Nicholas For respondent : Mr.J.Srinivasa Mohan JUDGMENT The appeal has been filed against the orders of remand passed by the Appellate Court, setting aside the Decree of dismissal for fresh disposal by the trail Court. The point for consideration by this Court is very limited namely, whether the Appellate Court is justified in remanding the matter to the Trial Court? 2. Appellant is the defendant before the trial Court and the respondent is the plaintiff. The respondent herein filed suit for declaration of title and for delivery of possession of by schedule properties and for damages. The said suit was contested by the appellant herein. After elaborate trial, the trial Court dismissed the suit by a Decree and Judgment dated 11.12.2001. Against the said Judgment the respondent preferred in A.S.No.54/2002. In the said Appeal respondent took out two I.A's in I.A.No.129 of 2003 and I.A.No.130 of 2003. I.A.No.129 of 2003 was filed under Order 41 rule 21 read with Section 151 of C.P.C. to seek permission to let in further oral evidence in the Appeal. I.A.No.130 of 2003 was filed under Order 41 Rule 27 and read with Section 151 of C.P.C. to receive the additional documentary evidence. https://hcservices.ecourts.gov.in/hcservices/ 3. While dealing with the said applications the Appellate Court went into the details with regard to the boundary of the property and the contradiction between the Advocate Commissioner's Report and Ex.A.1 patta and surveyors report. However, the Appellate Court without giving any finding with regard to as to how the trial Court Decree and Judgment is not sustainable, merely based on the contradiction regarding boundary remanded the matter as follows:- "18. In this connection the suit property belonged to the Appellant's husband Viswanatha Achari. She being lone of the several heirs cannot filed suit for declaration of title without joining the other heirs of Viswanatha Achari viz sons and daughters of him thus giving room for non-joinder of necessary parties. Merely the evidence of P.W.2 and P.W.3 son and daughter were examined to state that they have no objection for filed the suit exclusively by the plaintiff will not prove the legal defect in the framing and filing of the suit. So the appellant alone filing without joining other heirs of Viswanatha Achari is not maintainable. Suit suffers for lit is non-joinder for necessary party to the suit will have impact this case. In the above circumstances I hold that Appeal has to be allowed while remanding the matter to the Trail Court with a direction for fresh disposal as early as possible no costs. 19. In the result, the Appeal is allowed, while setting aside the Decree and Judgment of the Trail Court and the suit is remanded back to the Trail Court for fresh disposal according to law and the Trail Court is directed to dispose the case as early as possible. Both parties are directed to appear before the Trail Court on 26.09.2003. No costs." 4. Aggrieved by the remand order, the defendant filed the appeal before this Court. The learned counsel for the appellant submitted that the suit filed by the respondent herein was dismissed on appreciation of pleadings and evidence and the matter was taken to Appellate Court by the respondent herein. Without giving any findings as to how the findings reached by the trial Court are wrong the Appellate Court simply remanded the matter and it is against law. Secondly, the learned counsel submitted that the applications filed by the respondents without any discussion, were allowed I.A.No.129 of 2003 itself was for adducing oral evidence and I.A.No.130 of 2003 was for marking of additional documents. Without giving an opportunity to the appellant herein the first https://hcservices.ecourts.gov.in/hcservices/ Appellate Court without giving any reasons allowed the applications and therefore the said orders liable to be set aside. 5. The learned counsel relied upon two Judgments of this Court in Poolar Vs. Gomathi Moopanar and 2 Others reported in 1996 (II) CTC 539. In that case, the Appellate Court remanded the suit for fresh trial pointing out some defects in the plaintiff's case. Without giving any finding as to how trial Court findings are not sustainable remanded the matter. Therefore, this Court held that suit cannot be remanded to fill up the lacuna and Appellate Court should make endeavour to dispose of the case by itself and Order of the Appellate Court remanding the case was set aside and further direction was given to the Appellate Court to dispose of the appeal on merits. In another case this Court in Rathnasamy Mudaliar Vs. Rasu reported in 2000 (II) MLJ 89 held that the Appellate Court must come to the conclusion on the pleading or on the evidence placed before it or on law that the Judgment and the Decree of trial Court was erroneous therefore liable to be reversed or set aside and there must be atleast a finding that there has been misunderstanding of the pleadings. In the absence of such finding there can be no reversal or setting aside of the Judgment and the Decree of trial Court and the Consequent remand. Relying upon those Judgments the learned counsel submitted that in the instant case also no such finding was given by the First Appellate Court and therefore submitted the remand itself is wrong. 6. On the other hand Mr.J.Srinivasa Mohan, learned counsel for the respondent/Plaintiff submitted that reasons for remand were given by the First Appellate Court in Paragraphs 15,16,17 and 18 of the Judgment of the Appellate Court and that there are contradictions between the boundaries of the suit property as contained in Advocate Commissioner report and the patta and that therefore, the Appellate Court thought it fit to remand the matter for fresh disposal. The learned counsel further submitted that in paragraph 18 of the Judgment that the Appellate Court gave a finding that the suit suffered for non-joinder of necessary party and therefore the remand order was passed rightly. The learned counsel relied upon the Judgment of the Hon'able Supreme Court in Narayanan Vs. Kumaran and others reported in 2004 (4) SCC 26 to submit that even for filing appeal against the remand order, there should be a question of law as adopted in second appeal. In the said case suit filed by the plaintiff was dismissed and against which an appeal was filed before the Appellate District Court. On appreciation of evidence the District Court on certain factual findings based on the evidence allowed the appeal and remitted the matter back to the trial Court for identification of the properties. The said order of remand was challenged before the High Court. The High Court instead of testing order of remand went into the question of facts and allowed the appeals setting aside https://hcservices.ecourts.gov.in/hcservices/ the Judgments of the District Court and restored the dismissal order of the Munsif Court. The said order of the High Court was set aside by the Hon'ble Supreme Court. The Hon'ble Supreme Court after going into the factual details held as follows:- " It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the Appellate Court instead of making an order on remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under Order 43 Rule 1 clause (u) should be heard only on the ground enumerated in Section 100. We, therefore, accept the contention of Mr.T.L.V.Iyer and hold that the appellant under an appeal under Order 43 Rule 1 clause (u) is not entitled to agitate questions of facts. We, therefore, hold that in an appeal against an order or remand under this clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the lower Appellate Court." By relying upon the said Judgment the learned counsel submitted that the question of law has to be framed then only the Appeal is maintainable. Apart from that the learned counsel submitted that the order of remand would not prejudice the appellant and therefore sought for dismissal of the Appeal. 7. A perusal of the Judgment of Appellate Court would reveal that there is no clear finding as to how the first Appellate Court disagreed with the findings of the trial Court. As already held by this Court there should be a finding that the decision of the trial Court is liable to be reversed before remanding the suit. In this case no where in the Judgment, the first Appellate Court rendered any finding as stated above and that itself is fatal to the remand order. 8. Secondly, two applications were filed one was for adducing oral evidence and other one was to mark new document. Without even giving any reasons the first Appellate Court mechanically allowed those applications as if it was exparte order, especially, when the matter was contested by the appellant by filing counter. That itself would go to show that the Appellate Court had not applied its mind and decided the matter. If the applications were to be allowed, the Appellate Court should not have remanded the matter on https://hcservices.ecourts.gov.in/hcservices/ the other hand it should have allowed the respondent herein to adduce evidence and mark the document by giving an opportunity to the appellant to cross examine the witnesses. Without doing that, the additional document was received and marked as Ex.A.1. The approach of the Appellate Court is wrong as contrary to the procedure and law and therefore is liable to be set aside. 9. With regard to the Judgment referred to by the learned counsel for the respondent that question of law has to be framed, if an appeal has been filed against the order of remand under Order 43 Rule 1 Clause (u). In the said case decided by the Hon'ble Supreme Court, the remand order was challenged before the High Court. High Court without deciding the scope of the order of demand further went into the details on merits and confirmed Decree of trial Court setting aside the Judgment of the District Court. Therefore, the Hon'ble Supreme Court held that instead of deciding the remand order the High Court went into the merits of the case and that cannot be done without framing the question of law. In this case no adjudication was done by the Appellate Court and it only remanded the matter, without giving reasons. Therefore, the objections raised by the learned counsel by citing the Hon'ble Supreme Court Judgment reported in 2004 (4) SCC 26 is not sustainable as the facts are different. 10. When the Appellate Court chose to allow the application for oral evidence as well as the documentary evidence, it should have taken the task of recording the evidence and decide the matter under order 41 Rule 24, where evidence on record is sufficient, the Appellate Court may determine the case finally. Under order 41 Rule 25 where Appellate Court is entitled to frame issues and refer them for trial to Court whose Decree Appealed from. The Appellate Court is empowered under Order 41 Rule 27 to direct production of additional evidence and the mode of taking additional evidence is given under order 41 Rule 28. When such is the position, the Appellate Court mechanically remand the matter for fresh disposal without giving any finding as to how the findings of the trial Court were illegal. In the absence of any such finding the order of remand cannot be sustained and therefore it is set aside. 11. However, taking into consideration of the fact that the suit was filed in the year 2001, the Appellate Court is directed to restore the Appeal Suit No.54 of 2002 to its file and dispose of the same on merits within six months from the date of receipt of a copy of this order. The parties are at liberty to adduce fresh evidence before the Appellate Court if they choose to adduce, including filing fresh Advocate Commissioner Application. https://hcservices.ecourts.gov.in/hcservices/ 12. With the above, the Appeal is allowed. However, there will be no order as to costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. smn To 1.The Additional Subordinate Judge, Chengalpattu. 2. The District Munsif, Chengalpattu. 1 cc to Mr.J. Srinivasa Mohan, Advocate, Sr. 2183 1 cc to Mr.V. Nicholas, Advocate, Sr. 2107 C.M.A.No.607 of 2004 TRM (CO) kk 8/4 https://hcservices.ecourts.gov.in/hcservices/