IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 FAO.No. 236 of 2008() --------------------- AS.114/2007 of SUB COURT, PERUMBAVOOR OS.170/2002 of MUNSIFF COURT, PERUMBAVOOR .................... (S): APPELLANT/RESPONDENT/PLAINTIFF ---------------------------------------------------------- NARAYANAN NAIR, AGED 50, S/O.RAMAN NAIR, VENNIYATH HOUSE, IRAPURAM KARA, IRAPURAM VILLAGE. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): APPELLANTS/DEFENDANTS 2 TO 4 ----------------------------------------------------------- 1. PREETHI, AGED 38, W/O.NATHAN, KIZHAKKE VARIKKATTU (SARADAMMA NIVAS),IRAPURAM KARA, IRAPURAM VILLAGE. 2. NEETHU, AGED 12, D/O.NATHAN, KIZHAKKE VARIKKATTU(SARADAMMA NIVAS) IRAPURAM KARA, IRAPURAM VILLAGE. 3. NEENU, AGED 12, D/O.NATHAN, KIZHAKKE VARIKKATTU (SARADAMMA NIVAS)IRAPURAM KARA, IRAPURAM VILLAGE. ADV. SRI.G.RAJAGOPAL FOR R1-3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.3871/2008 IN F.A.O. NO236/2008 24.3.2009 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== F.A.O. NO.236 OF 2008 =========================== Dated this the 24th day of March,2009 JUDGMENT Plaintiff in O.S.170/2002 on the file of Munsiff Court, Perumbavoor who is the respondent in A.S.114/2007, is the appellant. Second defendant and defendants 3 and 4 the other legal heirs of deceased first defendant who are the appellants in A.S.114/2007 on the file of Sub court, Perumbavoor are the respondents. Appellant instituted O.S.170/2002 claiming damages for defamation originally from the first defendant and his first wife the first respondent. On the death of the first defendant, respondents 2 and 3 were also impleaded as additional defendants. Learned Munsiff granted a decree in favour of the appellant to realise Rs.50,000/- as damages. It was challenged before Sub Court, Perumbavoor F.A.O.236/2008 2 in A.S.114/2007. Learned Sub Judge after hearing the appeal, as per judgment dated 16.2.2008 remanded the suit to the trial court for fresh disposal after granting opportunity to the respondents to adduce defence evidence. The order of remand is challenged in this appeal. 2. The appeal was admitted on the following substantial question of law. Whether the order of remand by the first appellate court is legal when the appellants in the first appeal have no case that they were not granted opportunity to adduce evidence or were prevented from adducing evidence.” 3. Learned counsel appearing for the appellant and respondents were heard. 4. The suit was for damages contending that F.A.O.236/2008 3 the defendants by filing a complaint before Kunnathunad Police registered as Crime No.144/2001 under section 324 of IPC caused damages to the reputation of the appellant by committing defamation and therefore he is entitled to get damages. The suit was resisted by respondents contending that Police has registered the case and there was justification for lodging the complaint and the reputation of the appellant was not affected by the complaint and it is justified by truth and therefore the suit is not maintainable. 5. Before the trial court appellant and three witnesses were examined on his side and on the side of the respondent first respondent the second defendant was examined and Exts.A1 to A6 were marked. It is on that evidence, learned Munsiff granted a decree. The learned Sub Judge did not analyse the evidence or found that appreciation of evidence by the trial court was not proper. On the other hand after narrating the arguments raised by F.A.O.236/2008 4 the appellants and respondents in the first appeal, the learned Sub Judge remanded the suit as follows:- “The burden is on the defendant to prove that they are justified in filing the complaint. The defendant did not adduce evidence to prove this aspect. Therefore, the counsel wants an opportunity for adducing fresh evidence. It can be seen that the first defendant is no more. The 2nd defendant is a widow with two minor children. Considering this aspect it is necessary that the defendant should be given F.A.O.236/2008 5 an opportunity to adduce evidence regarding their defence. Therefore, the judgment and decree of the lower court is set aside.” Learned counsel appearing for the appellant made available copy of the appeal memorandum. It is seen from the appeal memorandum that there was no case for the respondents in the appeal that they were not granted sufficient opportunity to adduce evidence. There is also no case that any of the witnesses who were sought to be examined could not be examined for any reason. There was no prayer for a remand of the suit for adducing further evidence. Learned Sub Judge also did not find that the appellants in the first appeal were prevented from adducing necessary evidence either by an act of the trial court or for any other reason. In such circumstance, learned Sub Judge was not justified in setting aside the decree and judgment F.A.O.236/2008 6 of the trial court and remanding the suit for granting an opportunity to the defendants to adduce evidence without considering the evidence on record. It is more so when even the defendants themselves have no case that they did not get opportunity to adduce evidence. In such circumstance, appeal is allowed. The judgment in A.S.114/2007 is set aside. A.S.114/2007 is remanded to Sub Court, Perumbavoor for fresh disposal in accordance with law. Learned Sub Judge to hear the appeal and dispose the appeal on merits. Parties are directed to appear before the Sub Court, Perumbavoor on 26.5.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006