IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 FAO.No. 240 of 2009() --------------------- AS.174/2005 of 1ST ADDL.DISTRICT COURT, THRISSUR OS.19/2003 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT/RESPONDENT/DEFENDANT: -------------------------------------------------------------- MOHANLAL, AGED 49,S/O.BALAPARAMBIL GANGADARAN, KAIPAMANGALAM VILLAGE DESOM, KODUNGALLUR TALUK. BY ADVS. SMT.PREETHY KARUNAKARAN, MR.K.RAVI (PARIYARATH). RESPONDENT(S): APPELLANT/PLAINTIFF: ----------------------------------------------------------------- SUGATHAN,S/O.THALIYAPARAMBIL APPU, KAIPAMANGALAM VILLAGE,KODUNGALLUR TALUK, THRISSUR DISTRICT. BY ADVS. MR.T.K.MARTHANDAN UNNITHAN, MR.V.JAYAKUMAR. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 21/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.3423/2009 IN FAO NO.240/2009 DISMISSED 21/01/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 240 OF 2009 = = = = = = = = = = = = = = = Dated this the 21st day of January, 2010. J U D G M E N T This appeal is preferred against the order of the I Additional District Judge, Thrissur in A.S.174/05 whereby the learned Judge has remanded the case to the trial court for examination of one Ajidatha as an additional witness if advised. It is challenging that finding the appeal is preferred by the defendants in the case. In order to properly dispose of the matter it is necessary to state the bare minimum facts to find out whether the learned Additional District Judge has passed an appropriate order of remand. Admittedly the property belonged to one Gangadharan. He got it by virtue of an assignment deed as well as an exchange deed. He had transferred that property to the defendant Mohan Lal by virtue of a gift deed No.2374/95. Then it is the case of Mohan Lal, defendant that he along with his son had joined a kuri conducted by one Balan and had bid the kuri in auction F.A.O. 240 OF 2009 -:2:- and as per the prevalent practice in the chit company towards security has executed a power of attorney in favour of Mr.Balan. According to the plaintiff it is a valid power of attorney and by virtue of that valid power of attorney Balan had assigned the property to one Viswanbharan and this Viswambharan through the power of attorney holder Ajidatha has assigned the property in favour of the plaintiff and thereby the plaintiff is claiming right over the property. So the crucial question for consideration in the whole matter is whether the power of attorney executed by Mohan Lal, defendant in favour of Balan is proper and valid or whether it is a document executed as a security for receiving the chit amount bid in auction. If the power of attorney is proper and valid then all the transaction that had followed are valid. If the power of attorney is only a document for name sake or it is only a security not intended to be acted upon then any other transaction made on the basis of the said power of attorney is in valid. Now the trial court after elaborately considering the matter arrived at a decision that the power of F.A.O. 240 OF 2009 -:3:- attorney was only executed as a security and therefore repelled the contention of the plaintiff of having derived any title to the property by virtue of the execution of the document by Ajidatha to her. So as stated by me earlier the crucial question is regarding the power of attorney and not regarding the assignment deeds executed. 2. In the appeal an I.A. was filed as I.A.123/07 for giving an opportunity to examine this Ajidatha. It was dismissed by the learned District Judge. Against that order a writ petition was filed before this Court as WPC 7557/07 and the learned Judge of this Court in the admission stage itself disposed of the writ petition as follows. “In the circumstances, I dispose of this writ petition setting aside Ext.P5 order, thereby giving an opportunity to the appellate court to allow examination of the said witnesses or to remand the matter to have the witness examined, if it finds, on final hearing of the appeal, that the said witness is a material witness and opportunity should be given to the appellant to examine the said witness. It is F.A.O. 240 OF 2009 -:4:- made clear that setting aside of Ext.P5 order is no indication that Ext.P3 petition is to be allowed.” 3. So the some and substance of the order passed by this Court is to the effect that the appellate court while and after hearing the appeal on merits finds that the examination of Ajidatha is necessary for a proper determination of the case, then a discretion has been given to that Court either to examine Ajidatha by itself or by remitting the matter to the Court below. So it is a condition precedent that the Court must arrive at a finding regarding the necessity of examination of this Ajidatha. I do not mean that it must be recorded and stopped there but it must be found in the judgment how it has become necessary. 4. Now what the learned appellate judge has done is, he has extracted the case of the parties and also extracted the argument raised by the appellant and respondent and then jumps to a conclusion that in the light of the order passed by this Court in the writ petition it has become F.A.O. 240 OF 2009 -:5:- necessary to remand the case. I am afraid that such an approach made by the learned Additional District Judge is erroneous. The learned additional District Judge was wrong when he pointed out that, “The Hon'ble High Court set aside the order passed in I.A.123/07 on a finding that the witness is essential for just decision.” 5. Nowhere this Court has entered into such a finding but what this Court has directed is that if on appreciation of materials the appellate court finds it necessary he may do it. So instead of analysing the materials available before it in order to properly understand the matter the learned Additional District Judge has jumped to the conclusion and remanded the matter. I do not want to say anything further on merits for the reason the matter has to be reheard by the learned District Judge. Therefore the order of remand passed by the Additional District Judge is set aside and he is directed to restore the appeal back to file and hear both the parties and act in accordance with the directions given by F.A.O. 240 OF 2009 -:6:- this Court in Writ Petition No.7557/07. It has also to be always remembered that when an application for reception of documents or amendment is being considered it has to be considered along with the appeal and not independently. Since the matter was pending before this Court it is desirable I give a date of appearance for the parties before the Additional District Judge. Therefore I direct the parties to appear before the first Additional District Judge, Thrissur on 25.2.2010 and the matter be disposed of as directed above. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-