IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 FAO.No. 69 of 2009() -------------------- AS.274/2007 of II ADDL.SUB COURT,THRISSUR OS.14/1995 of PRL.MUNSIFF COURT,THRISSUR .................... APPELLANT/1ST RESPONDENT/1ST DEFENDANT:- -------------------------------------------------------- CHANDRASEKHARAN, S/O.THATTAN SANKARAN, THAIKKATTUSSERY DESOM, EDAKKUNNI VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. BY ADV. MR. G.P.SHINOD MR. RAM MOHAN.G. MR. MANU V. RESPONDENTS/ APPELLANT & RESPONDENTS 2 & 3/PLAINTIFF & DEFENDANTS 2 AND 3:- ------------------------------------------------------------------------- 1. USHA SASIDHARAN, D/O.MUNDOORU VASU, ARANATTUKARA VILLAGE DESOM, THRISSUR TALUK, THRISSUR DISTRICT. 2. SANKARANKUTTY, S/O.VATTAPPARAMBIL PARAMESWARAN, THAIKKATTUSSERY DESOM, EDAKKUNNY VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 3. SASIDHARAN, S/O.ANCERY RAGHAVAN, ARANATTUKARA VILLAGE DESOM, THRISSUR TALUK, THRISSUR DISTRICT. ADV. MR. P.VIJAYA BHANU FOR R1 MR. M.GEORGE THOMAS THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: F.A.O. NO. 69/2009 : 2 : ORDER ON I.A. NO. 900/2009 IN F.A.O. NO. 69/2009 DISMISSED 16.07.2009 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR , J. ------------------------------------------------------------- F.A.O. No. 69 of 2009 ------------------------------------------------------------ Dated this the 16th day of July, 2009. JUDGMENT The 1st defendant in O.S. No. 14 of 1995 on the file of the Munsiff's Court, Thrissur is the appellant in this appeal filed under Order XLIII Rule 1(u) C.P.C. The said suit was filed by the 1st respondent herein against the appellant and respondents 2 and 3 seeking a perpetual injunction restraining the defendants from creating any documents or from trespassing into the plaint schedule property admeasuring 7 cents of land and building therein and causing damage to the property and also from forcibly evicting the plaintiff from the plaint schedule property. 2. The suit was resisted by the appellant filing a written statement. 3. The trial court, after trial, as per judgment dated 17.12.2004 dismissed the suit upholding Ext.B5 power of attorney said to have been allegedly executed by the plaintiff in favour of the 1st defendant. 4. Aggrieved by the judgment and decree passed by the trial court, the plaintiff filed A.S. No. 274/2007 before the Sub F.A.O. No. 69/2009 : 2 : Court, Thrissur. The lower appellate court as per the impugned judgment dated 09.12.2008 set aside the judgment and decree passed by the trial court and remanded the case to the trial court for fresh disposal. Hence this appeal by the 1st defendant. 5. I heard the learned counsel appearing on either side. The main reason given by the lower appellate court to set aside the judgment and decree passed by the trial court and remand the case to the court below is to be found in paragraph 11 of the impugned judgment which reads as follows:- “11. Here, the execution of the power of attorney has been disputed by the plaintiff. Unless the document is admitted by the opposite party, it can only be marked by adducing oral evidence. The counsel for the respondent submitted that an opportunity may be given to the respondents to adduce evidence for admitting the aforesaid document. Even though, the document is mentioned as Ext.B5 in the appendix of the judgment, in fact, the document has not been admitted in evidence properly. So, I think that an opportunity can be given to the respondent to adduce evidence. The counsel for the appellant submitted that the dispute regarding the execution of the power of attorney and also the nature of power of attorney i.e., whether it is revocable or irrevocable may be left open for fresh consideration of the trial court, after affording an opportunity to both sides to adduce fresh evidence. I do not find any reason to disallow in the request. I think that the only course open is to remand the suit for fresh disposal after giving an opportunity to both sides for adducing evidence as aforesaid. A decision on point Nos. 1 & 2 can be had only thereafter.” F.A.O. No. 69/2009 : 3 : 6. After hearing the arguments addressed by both sides, I called for the deposition of PW1 and Ext.B5. A perusal of the deposition of PW1 will show that Ext.B5 power of attorney deed was put to the witness. No doubt, the deposition does not mention in so many words that it is marked as Ext.B5. But, PW1 was thereafter confronted with the document as Ext.B5. A perusal of Ext.B5 also shows that it contains exhibit seal in terms of Order XIII Rule 4 C.P.C. Hence, the lower appellate court was taking a hyper technical view in holding that the document was not admitted in evidence properly. The learned Subordinate Judge has slapped a remand on the parties on a flimsy reason. 7. It is well settled that as far as possible the appellate court should avoid a remand unless it is absolutely essential. (See Sundaresan Nair v. S. Krishnankutty Nair - 2007(2) KHC 414). This is a case where there was a fulfledged trial before the learned Munsiff and both parties had ample opportunities to adduce evidence. They had also joined issues on the contested matter including one pertaining to Ext.B5. 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 F.A.O. No. 69/2009 : 4 : 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 & Police Equipment v. Kanodia Brothers - 1968 KLT SN 19 (SC)]. The lower appellate court was virtually abdicating its duty by remanding the case to the trial court instead of deciding the appeal on the evidence already on record. The order of remand cannot, therefore, be sustained. The judgment of the lower appellate court is set aside and the matter is remanded to the lower appellate court for disposal of the appeal on merits with the evidence already on record. The parties shall appear before the lower appellate court on 03.08.2009 without any further notice. The court fee paid on the memorandum of appeal shall be refunded to the appellant. There shall be no order as to costs. Dated this the 16th day of July, 2009. V. RAMKUMAR, JUDGE. rv F.A.O. No. 69/2009 : 5 : V. RAMKUMAR, J ------------------------------------ F.A.O. No. 69 of 2009 ---------------------------------------- 16th day of July, 2009. F.A.O. No. 69/2009 : 6 : JUDGMENT