IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 FAO.No. 249 of 2007() --------------------- AS.127/2002 of SUB COURT,NEYYATTINKARA OS.1932/1999 of II ADDL.M.C.,NEYYATTINKARA .................... APPELLANT/RESPONDENT/PLAINTIFF ----------------------------------------------- RAJAMONY S/O.PARAMANANDAN NADAR, AGED 59 YEARS, SHAJI BHAVAN, CHANANAAKATTU, KARUMANOOR DESOM, PARASALA VILLAGE. BY ADV. SRI.D.KISHORE RESPONDENT: APPELLANT/DEFENDANT -------------------------------- MOHAMMED NOOHU, S/O.PEERUKANNU, AGED 75 YEARS, NOOHU MANZIL, PARASSALA DESOM, PARASSALA PAKUTHI, NEYYATTINKARA TALUK. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA 3123/07 IN FAO 249/07 DISMISSED 19.3.08 SD/- K.PADMANABHAN NAIR, JUDGE /TRUE COPY/ PA TO JUDGE. K.PADMANABHAN NAIR, J. ---------------------------------- F.A.O.No.249 OF 2007 ----------------------------------------------------- DATED THIS THE 19TH DAY OF MARCH, 2008 J U D G M E N T The plaintiff/respondent in A.S.No.127/02 on the file of Subordinate Judge's Court, Neyyattinkara is the appellant. The appeal is filed challenging an order of remand passed by the lower appellate Court. Though this Court did not frame any substantial question of law at the time of admission, I am of the view that the following substantial question of law arises in this case. Whether the procedure followed by the appellate Court giving an opportunity to the appellant to amend the pleadings and adduce evidence is legal and proper, in view of the finding that he can claim only a particular plot identified by the Commissioner? The suit filed by the appellant was decreed by the trial Court. Challenging that decree and judgment, the defendant filed A.S.No.127/02. While discussing the merits of the case in F.A.O.249/07 -2- paragraph 8 of the judgment, the lower appellate Court held that the plaintiff cannot claim any property outside the HIJKPO plot. But at the same time, the lower appellate Court found that sufficient opportunity can be afforded to the plaintiff to amend the plaint. It was also held that the parties are at liberty to adduce fresh evidence. When the lower appellate Court decides to grant opportunity to an appellant to amend the pleadings and adduce additional evidence, it should not have entered into any finding on the merits of the case. So, I set aside the observation made by the lower appellate Court that the plaintiff cannot claim any property outside the HIJKPO plot. Whether he is entitled to claim any property outside that plot shall also be considered and decided by the trial Court in accordance with law. I make it clear that the defendant can also amend his pleadings and adduce evidence. The F.A.O. is disposed of in the above terms. K.PADMANABHAN NAIR, JUDGE. dsn