IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 04.03.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.2147 of 2007 and M.P.No.1 of 2007 S.V.Sundaram ... Appellant/ Plaintiff Versus 1. T. Nagaraja Neduvanda 2. K. Premanadha Pillai 3. S. Veerasamy Neduvanda 4. Durairaj Vellalar 5. Arun Kili 6. Bharanidharan (Minor) 7. Iniya (Minor) (Minor respondents 6 and 7 are represented by their mother and natural guardian the fifth respondent)...Respondents/ Defendants Prayer:- This appeal is preferred against the Judgment and order of the learned Subordinate Judge, Mannargudi in A.S.No.17 of 2006 dated 25.01.2007 remanding the suit to the trail court for fresh disposal by reversing the Judgment and Decree of the learned District Munsif Court, Mannargudi in O.S.No.41 of 2004, dated 26.04.2004. For Appellant : Mr. V. Chandrakanthan For Respondents : Mr. Bhaskar for M/s. Srinath Sridevan J U D G M E N T The above appeal has been filed by the appellant/plaintiff against the Judgment and Order of the learned Subordinate Judge, Mannargudi, in A.S.No.17 of 2006 dated 25.01.2007 remanding the suit to the trail court for fresh disposal by reversing the Judgment and Decree of the learned District Munsif Court, Mannargudi in O.S.No.41 of 2004, dated 26.04.2004. https://hcservices.ecourts.gov.in/hcservices/ 2.The short facts is necessary for disposing the appeal:- The plaintiff had filed a suit against the defendants claiming a sum of Rs.50,000/-. The plaintiff stated in his plaint that he is a respectable person and Law-abiding Citizen, Social Worker and a business man, holding various posts in social organisations as well as Income Tax assessee and as such he is closely moving with top political leaders and service oriented persons. He further stated that for the past 30 years, he has earned a good name after dedicating his life to social service and that he has a good reputation in the local area. 3. Knowing this fact, the defendants were unable to digest his popularity in the local area. Hence, the defendants had sent complaints to the various authorities like State Government and Central Government bodies. The Prime Minister of India, The Chief Minister of Tamil Nadu and the Inspector General of C.B.C.I.D. stating that the plaintiff is a criminally oriented person. After sending these allegations to the above mentioned persons, an enquiry was conducted by the authorities in the local area. Some of them had approached and enquired with him regarding the veracity of the complaint. This had severely wounded the plaintiff and spoiled his good name in the local society. Aggrieved by this act of the defendants, the plaintiff sent a legal notice on 01.11.2000, to the defendants and asked them to arrange a public function and pay him a compensation of Rs.1 Lakh as damages. The same was not complied with by the defendants. 4. Hence, the plaintiff had filed a defamation suit against the defendants and claimed a compensation of Rs.50,000/-. In order to establish his case, he had filed 16 documents. 5. The defendants had filed a written statement and resisted the suit, stating that the plaintiff was not engaged in paddy and rice business for the past 30 years, as claimed by him. Further, the defendants had not admitted that he is a good citizen of India even though he possessed 15 acres of land and owner of transport motor vehicles. The defendants further stated that the plaintiff is a Trustee to the Lakshmi Amman Temple and has used this power for his personal gain. The defendants further stated that the plaintiff was in touch with top political leaders and other V.I.P's and this had aided him to do wrongdoings. Further, the plaintiff is doing money-lending business and collecting higher rate of interest from the poor agriculturists. The defendants further stated that the plaintiff had encroached upon third person's house and house-site and enjoying the same. Further, the plaintiff is causing a lot of hardship to the poor and village people. The aggrieved persons made an appeal to the V.I.P's of the village. https://hcservices.ecourts.gov.in/hcservices/ 6. Thereafter, a decision was taken by the villagers and a complaint was lodged with the higher officials. On the said complaint, enquiry might have been conducted. Merely by conducting an enquiry, the plaintiff's reputation will not be spoiled. So this act of the village public will not cause any mental agony or spoil his reputation, as claimed by the plaintiff. Hence the defendants had prayed for dismissal of the suit. 7. Thereafter, the plaintiff tendered evidence before the Trial Court. After recording his evidence, a decree was passed in favour of the plaintiff and the defendants were directed to pay a sum of Rs.50,000/- as damages to the plaintiff within a period of two months. The Decree and Judgment was passed on 26.04.2004. 8. Aggrieved by the said Judgment and Decree, the defendants had filed an appeal suit in A.S.No.17 of 2006. The same was allowed on the condition that the Trial Court restore the suit after sending notice to both the parties and conduct a fresh enquiry and dispose the case within a period of six months. Further, the learned Subordinate Judge directed the parties to appear before the Trial Court on 26.02.2007. 9. Aggrieved by the said Judgment and Order, the appellant/plaintiff has filed the above appeal in C.M.A.No.2147 of 2007. 10. Learned counsel appearing for the appellant argued that the appellant is aged about 70 years and is a senior citizen. Before, initiating the suit against the defendants, he had sent a legal notice to the defendants and the same was duly received by them. Only after giving them sufficient opportunities to respond to the notice, the suit was filed. In the said suit, notices had been sent to the defendants. As such, the defendants are well aware that the suit was pending against them. Thereafter, the plaintiff's evidence had been recorded on 29.10.2001, 18.09.2003 and 15.12.2003. After the evidence of P.W.1, sufficient opportunities were granted to the defendants. The learned counsel further argued that the suit was filed on 18.12.2000 and the Decree was passed on 26.04.2004 i.e. only after a period of more than three years, the suit had been decreed in favour of the plaintiff. In order to establish his suit, he had marked sixteen documents. After a prima facie case had been made out, the suit was decreed. The learned counsel further argued that the defendants had wantonly and deliberately deferred the suit proceedings. The learned counsel further argued that the suit was disposed on merits after framing necessary issues. As such, the suit was disposed on merits. Therefore, the fresh trial which had been ordered by the learned Subordinate Judge is nothing but a parallel proceeding for the same cause of action. The learned counsel further argued that https://hcservices.ecourts.gov.in/hcservices/ if the suit which had been ordered in 2004 has to be retried again, it will cause hardship and mental agony to the appellant. The learned counsel has cited Judgments, which reads as follows:- i) Kannathal and others Vs. Arulmighu Kanniammal Karuppasamy Thirukoil, Pothanur Chettipalayam, Coimabatore, rep. by its Executive Officer (2007 (2) CTC 49):- “Code of Civil Procedure, 1908 (5 of 1908), Order 41, Rules 23 and 23-A – Powers of Remand – Appellate Court cannot remand matter to enable parties to make good their lapse and remanding of suit to Trial Court to enable plaintiff to amend pleading and to adduce additional evidence – Order of remand set aside.” ii) P.Chandran and others Vs. Devaki and others (2008 (2) L.W. 564):- “Code of Civil Procedure, 1908, Order 41, Rules 23-A, 25, 27/Remand, Powers of appellate Court, Scope – partition suit – Appeal (CMA) against order of remand – Held: In the present case, the lower Appellate Court has not come to the conclusion that the findings of the trial court in respect of Ex.A-3 Will is erroneous – The matter was remanded to the trial Court on the only ground that the Will was not probated – When the entire evidence on record and all the legal heirs of A A are also on record, the lower Appellate Court ought to have decided the matter one way or other, and decided as to what would be the share of each one of the legal heirs. Para 19 Where all evidence has been duly placed before the trial court and when trial court has decided the matter on merits on the issues involved, the Appellate Court has no power to remand. Where no issue was left undecided, the order of remand cannot be passed and remand is not meant to provide fresh opportunity to party to litigation – If the lower Appellate Court does not agree with the reasonings of the trial court, it must give its own findings – But it is entirely wrong to send the case on remand, back to the trial court. Para 20” https://hcservices.ecourts.gov.in/hcservices/ 11. The learned counsel appearing for the appellant further argued that the defendants had categorically admitted that the entire village people were well aware of the allegations against the plaintiff. This clearly proves that the defendants have malafide intention to spoil the plaintiff's reputation in the local area. As such, the defamation suit is proved. Therefore, one more fresh trial is not warranted. 12. Learned counsel for the respondents/defendants argued that an ex-parte Decree can be set aside at any time. The suit was decreed after hearing only the plaintiff's evidence. Therefore, the defendants have not entered into the witness box to prove their case. In the absence of defendants evidence and their documentary evidence, the suit had been decreed against them. Therefore, 'Lacunae' arises in the said Judgment and Decree. The learned counsel further argued that if the suit is disposed after recording evidence of the defendants, the plaintiff will not be prejudiced. The learned counsel further argued that there was no proper documentary evidence on the side of the plaintiff to establish the case against the defendants. The learned counsel further argued that the defendants are ready to co-operate with the Trial Court for a speedy trial within the stipulated period. 13. Considering the facts and circumstances of the case and arguments advanced by the learned counsel on either side and on perusing the Judgment and Order, dated 25.01.2007 made in A.S.No.17 of 2006 on the file of the learned Subordinate Judge, Mannargudi, this Court gives careful consideration of the following:- On 01.11.2000, the plaintiff had issued legal notice to the defendants. Following the notice, the suit was filed on 18.12.2000. After summons were served on the defendants, they entered appearance and filed their written statement on 07.08.2001. Thereafter, issues were framed and the suit was adjourned from time to time. Finally, the Judgment and Decree was passed on 26.04.2004, after recording the oral and documentary evidence of plaintiff besides considering the contents of the plaint and written statement. Aggrieved by the Judgment and Decree of an appeal suit was filed on 02.01.2007. The said appeal was disposed on 25.01.2007. Aggrieved by this Judgment and Decree in the appeal suit, the Civil Miscellaneous Appeal has been filed. Now the appeal has been disposed of in the year 2011 by this Court. 14. After such, the plaintiff has been seeking remedy against the defendants for the past ten years. However, the plaintiff has obtained a fruitful order from the Trial Court. If this Court gives an opportunity to the defendants for fresh disposal, the appellant/plaintiff should be compensated, without causing https://hcservices.ecourts.gov.in/hcservices/ prejudice to either of the parties. In such circumstances, this Court allows the above appeal on condition that the respondents/defendants shall jointly deposit 1/4th of the suit amount i.e. Rs.12,500/- in O.S.No.41 of 2004, on the file of the District Munsif Court, Mannargudi, within a period of one month from the date of receipt of this order. 15. After such deposit being made, the learned District Munsif is directed to dispose the suit within a period of six months, after giving notice to both the parties. The said amount should be dispensed after the outcome of the suit on merits. 16. In the result, the above Civil Miscellaneous Appeal is allowed with the above mentioned conditions. Consequently, the Judgment and Order dated 25.01.2007 made in A.S.No.17 of 2006, on the file of the Subordinate Court, Mannargudi, is modified. Accordingly ordered. Consequently, connected Miscellaneous Petition is closed. There is no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. smn To 1. The Subordinate Court Mannargudi 2. The District Munsif Court Mannargudi 1 cc to Mr.V. Chandrakanthan, Advocate, Sr. 15628 C.M.A.NO.2147 OF 2007 JRG (CO) KK 1/6 https://hcservices.ecourts.gov.in/hcservices/