The present appeal is preferred by the plaintiffs in O.S.No.704 of 1985 on the file of the Principal District Munsif Court, Virudhachalam, challenging the order of remand passed by the first appellate Court in A.S.No.119 of 2004.
2. The brief facts which are necessary for the disposal of this appeal may be stated:
The plaintiffs have filed the suit for declaration of his title over the suit property and for other relief. The suit was initially resisted by the second defendant/1st respondent herein. The trial Court decreed the suit and the appeal in A.S.No.30 of 2002 was preferred by the respondents 1 to 4 herein before the Principal District Munsif, Vridhachalam. Vide his judgment dated 31.10.2002, the first appellate Court remanded the matter on the ground that additional written statement filed by the second defendant/first respondent herein and the reply statement filed in response to that by the plaintiffs have not been considered by the trial Court. After remand, the trial Court went into the pleadings and considering the order of remand, it disposed of the matter Vide its judgment dated 19.03.2003. The suit was decreed again. The defendants preferred A.S.No.119 of 2004 challenging the decree of trial Court. The appellate Court, this time found that the trial Court had clubbed or merged issues nos. 6 and 7 as it originally framed and in its place, it framed another issue and attempted to answer the same. To this, the first appellate Court had taken exception to. It also appeared to have framed few additional issues and remanded the matter back to the trial Court on consent of both sides for fresh consideration. This order of remand is in challenge and appeal is preferred by the plaintiffs.
3. The learned counsel appearing for the appellants submitted that the first appellate Court has not applied its mind to the facts and evidence available on record and it has not even considered whether the available evidence would be sufficient and adequate to decide the issues it has framed, nor has it adequately appreciated the pleadings to consider whether the additional issues which it has framed at all arise for adjudication for a proper and final decision of the suit.
4. In this case, the third respondent has not yet been served with notice of this appeal. However, it has come out in the pleadings of the defendants that the suit property has already been sold to respondents 1 and 2, even prior to the suit and they who required to defend the suit are now before the Court. Coupled with the fact that the absence of the third respondent before this Court is not likely to affect the right of the first and second respondents and also for the conclusion that this Court has arrived which is to be delineated the paragraph below, this Court dispenses with notice to the third respondent.
5. In Elumalai v. Kanthamani Ammal [(2017) 1 MLJ 379], I had an occasion to consider the circumstances in which remand can be ordered :
An appellate court must ascertain if the suit is decided on a preliminary point. Here the appellate Court should be cautious not to misconstrue a preliminary point with preliminary issue under Order XIV Rule 2 CPC. Ordinarily, a suit is said to have been decided on a preliminary point if the trial court has either failed to consider all the issues that arise for consideration or has ignored to decide that which the pleadings in the suit require to be decided. This includes cases where burden of proof is wrongly fixed or where the case of one of the parties is failed to be considered on a misconception arising out of it.
Even where a suit is decided on a preliminary point but where the evidence is still available to decide the material points in controversy in a suit, an appellate court should normally take recourse to Order XLI Rule 24 CPC and decide the case. Even if proper issues are not framed but if those who litigate have understood what they are litigating and have adduced necessary evidence, an appellate Court must attempt to finally adjudicate the case. An order of remand should be read as an exception to what is contemplated under Rule 24. The first attempt is to proceed under Order XLI Rule 24, and if it is found not possible then to explore if the case at hand falls within Rule 25 situations and only if neither is possible, should an appellate court contemplate on resorting to remand under Rule 23 or 23-A. For the scope of Rule 25 refer Jaganathan Vs Raju Sihamani [(2012) 5 SCC 540: 2012 (4) MLJ 314] Mere appearance of a disposal on a preliminary point should not automatically be construed as a sufficient ground to remand a case. It must be founded on circumstances such as for instance where evidence adequate to decide a case is found lacking, or where parties have been misled by the omission to frame appropriate issues resulting in their failure to provide necessary evidence, or where any of the parties are denied an opportunity to adduce evidence, or where an appellate court considers that the evidence on any of the issues germane for final adjudication of the case is insufficient.
Where an appellate court encounters any exceptional situations arising out of the facts of the case that makes a final adjudication difficult to achieve is a situation when a case can be remanded. It may include any change of circumstances arising out of any subsequent events impacting the original cause of action; or discovery of a new fact requiring amendment of the pleadings within the scope of Order VI Rule 17 other than those that may render a suit bad for formal defect within the meaning of Order XXIII Rule 1 CPC or production of a new evidence subject to the limitations in Order XLI Rule 27 CPC, both of which may be of such nature that they are either inconsistent with any fact in issue or relevant fact already proved, or, which either by itself or in connection with other facts available on record make the existence or non-existence of any proved fact in issue or relevant fact highly improbable and hence require proof; These are only illustrative and not exhaustive.
A remand should not be made to reconstruct a case, but only to prevent failure of justice. A litigant's recalcitrance and default cannot not be counted as a ground per se to remand.
A remand is not required merely because of change of substantive law or advent of new law affecting the original cause of action, unless it also requires addition of parties or probe on facts.
6. In the case at hand, the first appellate Court did not even venture to verify if anyone of the conditions which are essential to justify the order of remand is present. Plainly, the first appellate Court appeared to have short circuited its approach to the appeal and has remanded it, rather too mechanically.
7. In the result, this appeal is allowed and the order of remand dated 28.11.2008 passed by the Additional Subordinate Court, Vridhachalam, passed in A.S.No.119 of 2004, is set aside and the first appellate Court is directed to hear both sides and verify yet another time whether the issues that it had earlier framed actually are warranted as per the pleadings of the parties and then venture to look if any evidence is available to decide the issues and then decide the matter as per law and principles laid. The first appellate Court is directed to dispose of the matter within eight weeks from the date of receipt of a copy of this order. The parties are directed to appear before the first appellate Court on 01.09.2017. No costs. Consequently, connected miscellaneous petition is closed.
02.08.2017 Note : Issue order copy on 10.08.2017 ds Index : Yes/No Internet : Yes/No To:
1.The Additional Sub Judge, Vridhachalam.
2.The Principal District Munsif, Vridhachalam.
N.SESHASAYEE,J ds CMA.No.3566 of 2010 02.08.2017