IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 FAO.No. 13 of 2007() -------------------- RFA.2/2003 of SUB COURT, QUILANDY .................... APPELLANTS/RESPONDENTS: ------------------------------------------- 1. BHASKARAN, S/O.KUNHIRAMAN, PADINHAREPADIKKAL PARAMBIL, THRIKKOTTUR AMSOM, DESOM, KOYILANDY TALUK. 2. NARAYANAN, S/O.KUNHIRAMAN, DO. DO. 3. JANU, D/O.KUNHIRAMAN, DO. DO. 4. CHANDRI D/O.KUNHIRAMAN, DO. DO. 5. SASI, S/O.KUNHIRAMAN, DO. DO. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): -------------------------- 1. MADATHIKKANDI KELPPAN, S/O.UNNARA, THALLACHEENTAVIDA, SWASTAM, THRIKKOTTUR AMSOM, DESOM, KOILANDY TALUK. 2. NARAYANAN, S/O.UNNARA, MADATHIKKANDI HOUSE, THRIKKOTTUR AMSOM, DESOM, KOILANDY TALUK. 3. MADATHIKKANDI VASU, S/O.UNNARA, MADATHIKULANGARA, DO. DO. 4. RAMAN, S/O.UNNARA, MADATHIKKANDI HOUSE, THRIKKOTTUR AMSOM DESOM, KOILANDY TALUK. F.A.O.No.13/2007 2 5. PONNARI AMMALU, D/O.UNNARA,VALLIATT, THRIKKOTTUR AMSOM, DESOM, KOILANDY TALUK. 6. GOPALAN, S/O.UNNARA, MADATHIKKANDI HOUSE, THRIKKOTTUR AMSOM DESOM, KOILANDY TALUK. 7. PUTHANPURAYIL KALLIANI, W/O.KUNHIRAMAN, PADINHAREPADIKKAL PARAMBIL, THRIKKOTTUR AMSOM, DESOM, KOYILANDY TALUK. 8. DEVI D/O.KUNHIRAMAN DO ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = F.A.O.No.13 of 2007 = = = = = = = = = = = = = = Dated this the 29 th day of July, 2009 JUDGMENT The plaintiff Nos.2 and 4 to 7 in O.S.No.9 of 2002 on the file of the Munsiff's Court, Payyoli are the appellants in this appeal filed under Order 43 Rule 1(u) of the Civil Procedure Code. They are challenging the remand order passed by the lower appellate court namely Sub Court, Koyilandi in R.S.A.No.2 of 2003. The aforesaid suit was filed by the appellants and the 1st plaintiff for a perpetual injunction. The suit was resisted by the defendants who filed a joint written statement incorporating their contentions. 2. The trial court framed the following three issues for trial. 1. Whether the suit is maintainable? 2. Whether the prayer for permanent prohibitory injunction is allowable? 3. Reliefs and costs?” The learned counsel for the respondents/defendants submits that the trial court had cast one additional issue as follows:- F.A.O.No.13 of 2007 2 “Whether the plaintiffs are in possession of the plaint schedule property?” On the side of the plaintiffs, 2nd plaintiff was examined as PW1 and Exts.A1 to A13 were got marked. On the side of the defendants, three witnesses were examined as DW1 to DW3 and Exts.B1 and B6 were got marked. 3. The learned Munsiff, after trial, as per judgment and decree dated 20.12.2002 decreed the suit with costs as prayed for. 4. Aggrieved by the judgment and decree passed by the trial court, the defendants filed R.F.A.No.2 of 2003 before the Sub Court, Koyilandi. The lower appellate court as per the impugned judgment dated 13.10.2006 has set aside the judgment and decree passed by the trial court and has remanded the matter to the trial court with a direction for disposal afresh after framing proper issues. It is the said remand order which is assailed in this appeal filed by plaintiffs 2 and 4 to 7. 5. Heard both sides. 6. One of the main criticism made by the lower appellate court against the trial court is that the trial court did not frame an issue as to whether the plaintiffs have proved that they were F.A.O.No.13 of 2007 3 in possession of the plaint schedule property. First of all, the trial court had on 30.11.2006 framed an additional issue to that effect. Secondly, even Issue No.2 as originally framed was as to whether the prayer for permanent prohibitory injunction is allowable and that is comprehensive enough to include the question as to whether the plaintiffs have established their possession of the suit property as on the date of the suit. It is only on proof of possession of the suit property that the plaintiffs in a suit for injunction can hope to get a decree in their favour. Such an issue was already there and the trial court had framed an additional issue as indicated above, though not adverted to in the judgment. In any view of the matter, the parties and their counsel were very much aware of the issues in the suit and the parties went to trial with the full awareness of the issue involved. Both sides adduced oral and documentary evidence in support of their respective contentions. Hence, even assuming that there was no issue cast as to whether the plaintiffs have proved their possession of the suit property on the date of the suit, it cannot be said that any prejudice was suffered by the defendants. 7. Another ground made mention of in the remand order is that the trial court did not consider some of the evidence F.A.O.No.13 of 2007 4 already adduced. The lower appellate court would say that eventhough the plaintiffs had produced 13 documents as Exts.A1 to 13, the trial court failed to take into consideration those documents except discussing them in one line in the judgment. Even assuming that the said criticism is true the lower appellate court which is also a court of facts and which by virtue of Section 107 C.P.C has all the powers of the trial court, was bound to consider oral and documentary evidence in the case and arrive at its own conclusion. This is a case where there was a full fledged trial before the court of first instance. If the trial court had recorded its findings only on a preliminary issue and had disposed of the suit without entering findings of the other issues, the lower appellate court would have been justified in exercising the power under Order 41 Rule 23 C.P.C. 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 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 and Police Equipment v. Kanadia Brothers - 1968 KLT (SN) 19 (SC) and Sekharan Nambiar v. Ramanunni Nambiar - 1992(1) KLT429. As far as possible, the appellate court should F.A.O.No.13 of 2007 5 avoid a remand unless it is absolutely essential (See Sundaresan Nair v. Dr.Krishnankutty Nair (2007(2) KHC 414). The lower appellate court by finding fault with the trial court in not framing proper issues in a case where proper issues have, in fact been framed, and by criticising the Trial Court that it had failed to advert to some of the evidence adduced by the parties, was virtually shirking its duties as an appellate court. The order of remand passed by the lower appellate court cannot be supported at all. It is accordingly set aside and R.F.A.No.2 of 2003 filed before the Sub Court, Koyilandi is restored to file and the appellate court shall dispose of the appeal on merits on the evidence already on record, after giving both sides an opportunity to be heard and untrammeled by the observations in this judgment. This appeal is allowed as above. No costs. The parties shall appear before the lower appellate court on 26.8.2009 without any further notice. Dated this the 28 th day of July, 2009. V. RAMKUMAR, JUDGE sj F.A.O.No.13 of 2007 6 F.A.O.No.13 of 2007 7