IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 FAO.No. 46 of 2007() -------------------- AS.33/2004 of ADDL. DISTRICT COURT, VADAKARA OS.9/2003 of MUNSIFF-MAGISTRATE COURT, PAYYOLI .................... APPELLANTS/RESPONDENTS IN AS/DEFENDANTS IN OS: -------------------------------------------------------------- 1. KUNNATHU KARA HIDAYATHUL ANAM SANGAM, A SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT, THROUGH ITS PRESIDENT, OFFICE AT SABILUSSALAM MADRASA BUILDING, KUNNATHUKARA AT WARD NO.12 OF MANIYOOR PANCHAYATH, KUNNATHUKARA DESOM,VATAKARA TALUK, KOZHIKODE DIST. 2. K.M.POKER HAJI, S/O.AHAMMED KUTTY, AGED 50 YEARS, RESIDING AT THATTANKANDI KARUVANCHERI AMSOM, KUNNATHUKARA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. MR. N.L.KRISHNAMOORTHY MR. K.LAKSHMINARAYANAN MS.SATHYASHREE PRIYA RESPONDENT:APPELLANT IN AS/PLAINTIFF IN OS: ---------------------------------------------- P.KUNHABDULLA HAJI, S/O.MOOSA, AGED 77 YEARS, RESIDING AT PUTHOKOT, MANIYOOR AMSOM, DESOM, MANIYOOR (PO), VATAKARA TALUK, KOZHIKODE DISTRICT. ADV. MR. B.KRISHNAN MR. R.PARTHASARATHY THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO.46/07 ORDER ON I.A.458 OF 2007 IN FAO.46 OF 2007 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 19.3.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- F.A.O. No. 46 OF 2007 -------------------------------------------------- Dated this the 19th day of March, 2009 J U D G M E N T Defendants in O.S.9 of 2003 on the file of Munsiff Court, Payyoli are the appellants. Respondent is the plaintiff. Respondent instituted the suit seeking a decree (a) declaring that the letter dated 24.6.2002 (Ext.X1) is not signed by him, and (2) for a consequential injunction restraining second appellant from claiming any right to the post of manager of Kunnathukara M.L.P. School on the strength of the said letter. Respondent instituted the suit contending that he was the founder President and a member of the first appellant Society and in his capacity as founder President, he had purchased the school and the land where the aided school is functioning and the Education department had recognised the respondent as the manager of the school and in 1983 he relinquished the post of the President of the first appellant Society, but continued as manager and later he got information that the second appellant produced Ext.X1 letter purportedly issued and signed by the respondent before F.A.O.46/07 2 Assistant Educational Officer, Vadakara whereby it was informed that respondent had relinquished the post of the President and manager in favour of the second appellant. It is contended that that letter is a forged and fabricated document and was not executed by him and therefore he is entitled to a declaration and injunction sought for. 2. Appellants in the written statement contended that second appellant was appointed as the manager of Kunnathukara M.L.P. School by the first appellant and as per proceedings dated 26.10.2002 his appointment was duly approved by the Assistant Educational Officer, Vadakara and with effect from 1.2.2002 second appellant is functioning as the manager and respondent ceased to be manager with effect from 1.2.2002. It was also contended that remedy of the respondent is to file an appeal against the order of Assistant Educational Officer approving change in the managership and in any case Ext.X1 letter was voluntarily signed and issued by the respondent and is not a forged or fabricated document and therefore respondent is not entitled to the decree sought for. F.A.O.46/07 3 3. Learned Munsiff on the evidence of PW1, DW1 and Exts.A1 to A4 and B1 to B3 and X1 dismissed the suit holding that respondent did not establish that Ext.X1 letter is a forged or fabricated document. Respondent challenged the judgment before Additional District Court, Vadakara in A.S.33 of 2004. Learned Additional District Judge finding that respondent has not sought proper relief as he should have sought a declaration that he is the manager of the school, held that a suit as provided under section 34 of Specific Relief Act should have been framed. It was also found that the burden is on the respondent to establish that Ext.X1 letter is a forged one and he should have got Ext.X1 letter compared by an expert with the admitted signatures and therefore set aside the judgment and remanded the suit to the trial court. The said judgment is challenged in the appeal. 4. The appeal was admitted formulating the following substantial question of law. Whether the first Appellate Court was justified in remanding the appeal invoking the power provided under Rule 23A of Order XLI of Code of F.A.O.46/07 4 Civil Procedure without deciding the appeal on merits on the evidence on record ? 5. Learned counsel appearing for appellants and respondent were heard. 6. The suit as framed is for a declaration that Ext.X1 letter purportedly signed and issued by the respondent to the Assistant Educational Officer, Vadakara, which was admittedly acted upon by the Assistant Educational Officer, was not signed or sent by the respondent. A consequential relief of injunction restraining second appellant, whose appointment as the manager of the school was approved by the Assistant Educational Officer pursuant to Ext.X1 letter was also sought. The injunction sought for is to restrain second appellant from claiming any right to the post of the manger on the strength of Ext.X1 letter. Learned Munsiff on the evidence found that respondent did not succeed in establishing that Ext.X1 letter was not signed and issued by the respondent and dismissed the suit. That judgment was challenged in the first appeal before Additional District Court, Vadakara. Learned Additional District Judge did not consider the evidence but found that the finding of the learned Munsiff F.A.O.46/07 5 that Ext.X1 was not proved to be not signed and issued by the respondent is not correct. The learned Additional District Judge proceeded on the basis that the actual dispute between the parties is with regard to the managership of the school and whether respondent continued to be the manager after relinquishing the post of the President of the first appellant Society or whether he had relinquished the post of the manager also as stated in Ext.X1. Learned District Judge on that basis found that the respondent should have sought a declaration about his status as a manager and remanded the suit to the trial court for appropriately amending the plaint. The judgment itself shows that the respondent has no such case and he did not seek a remand for amending the plaint as stated in the judgment. Instead, learned District Judge felt that the suit should be amended and therefore remanded the suit. As rightly pointed out by the learned counsel appearing for the appellants, learned District Judge was not justified in remanding the suit without considering the correctness of the judgment in the trial court. In the light of the pleadings and the issue settled, the assumption that the relief in the suit should have been a different one is not F.A.O.46/07 6 justified when even respondent has no such case. 7. The powers of the appellate court to remand a suit to the trial court in view of incorporation of Rule 23A of Order XLI of Code of Civil Procedure is settled by the Apex Court in P. Purushottam Reddy and another Vs. M/s. Pratap Steels Ltd. (AIR 2002 SC 771) as follows. “ 10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act, 1976, there were only two provisions contemplating remand by a Court of appeal in Order 41 of CPC. Rule 23 applies when the trial Court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate Court notices an omission on the part of the trial Court to frame or try any issue or to F.A.O.46/07 7 determine any question of fact which in the opinion of the appellate Court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate Court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial Court, are required to be returned to the appellate Court. However, still it was a settled position of law before 1976 Amendment that the Court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 of the CPC. In cases where additional evidence is required to be taken in the event at any one of the clauses of F.A.O.46/07 8 sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate Court itself or by directing any Court subordinate to the appellate Court to receive such evidence and send it to the appellate Court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate Court hearing an appeal against a decree if (i) the trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate Court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent F.A.O.46/07 9 powers to make a remand because, as held in Mahendra v. Sushila (AIR 1965 SC 365, at p.399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the Court may now exercise the power of remand dehors the Rules 23 and 23A. To wit, the superior Court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20, Rule 3 or Order 11, Rule 31 of the CPC and hence it is no judgment in the eye of law it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an F.A.O.46/07 10 undeserved lease of life and therefore, must be avoided. ” 8. The suit as instituted is for a declaration that respondent did not sign and did not issue Ext.X1 letter. If respondent successively establish that fact, he is entitled to get such a declaration. The question whether by getting such a declaration the respondent could get the approval of the second appellant as manager unsettled or not, is not a matter to be decided in the suit or the appeal in the light of the relief sought for in the suit and the pleadings. In such circumstances the question of production of bye-law is not relevant and for that purpose learned Additional District Judge should not have remanded the suit. On going through the judgment of the first appellate court it is absolutely clear that first appellate court did not dispose the appeal on merits as mandated under the Code. The order of remand is illegal and it is therefore set aside. Appeal is allowed. The judgment of the Additional District Court, Vadakara dated 27.9.2006 is set aside. A.S.33 of 2004 is remanded to Additional District Court, Vadakara for fresh disposal in accordance with law. The first appellate court has to F.A.O.46/07 11 consider whether the evidence on record establish that Ext.X1 was not signed and issued by the respondent. If the respondent files an application to send Ext.X1 to an expert, the question whether it is to be sent or not is to be considered by first appellate court on merits. Send back the records immediately. Parties are directed to appear before Additional District Court, Vadakara on 22.5.2009. M. SASIDHARAN NAMBIAR, JUDGE okb F.A.O.46/07 12