This appeal has been filed by the appellant against the order of remand dated 07.07.2006 in A.S. No. 7 of 2005 on the file of the Subordinate Judge, Thiruvarur.
2. The learned counsel for the plaintiff.appellant contended that the suit was originally filed by the plaintiff/appellant for the relief of bare injunction and subsequently it was amended into one of declaration and permanent injunction. Both the first defendant and the second defendant have filed their written statement, evidence was let in both sides. At that stage, the first defendant/first respondent herein was set exparte. The trial court, heard the matter at length and passed orders on merits decreeing the suit in favour of the plaintiff/appellant herein. Aggrieved by the same, the first defendant, who was originally set exparte in the suit, preferred A.S. No. 7 of 2005 before the first appellate Court. The first Appellate Court without going into the merits of the case and without giving any finding in so far as the decree passed by the trial court, only based on the submission of the first defendant/first respondent herein that he was set exparte before the court below, set aside the decree and judgment passed by the court below and remanded the matter to the trial court for a de-novo trial which is legally impermissible.
3. The learned counsel for the first defendant/first respondent herein contended that the suit was filed for declaration and injunction in which the first defendant, after filing the written statement, was set exparte. Thereafter, the first appellate Court, in order to afford an opportunity to the first defendant, has rightly remanded the matter back to the trial court for fresh consideration and prayed for dismissal of this appeal.
4. Heard both sides. The short point for consideration in this appeal is whether the order of remand passed by the first appellate Court is valid and is in accordance with law.
5. On perusal of the records, it is seen that the suit was originally filed in the year 1998 for a bare injunction. The first defendant in the suit also filed his written statement. The defence put forward by the first defendant was that he is a tenant under the second respondent/municipality. Since the first respondent claimed leasehold right from the municipality, the second respondent/ municipality was impleaded as one of the defendants in the suit and the municipality also filed their written statement. Subsequently in the year 2001, an amendment application was filed and the same was allowed on 04.05.2002 by the trial court. Thereafter, evidence was let in both sides and thereafter, the first respondent herein was set exparte by the trial court and an exparte order also passed against him. Thereafter, the first respondent did not participate in the proceedings of the case. Ultimately, trial was conducted in the year 2003 wheein the second respondent/municipality alone participated, evidence was let in and documents were produced by the municipality. The trial court also framed necessary issues and additional issues on the basis of the written statement filed by the first defendant as to whether the lease said to have been granted by the municipality in favour of the first defendant is valid. Ultimately, the trial court decreed the suit declaring that the plaintiff/appellant is the owner of the suit property and granted an injunction as prayed for.
6. After the suit was decreed, the first respondent, who remained exparte in the suit, preferred an appeal before the first appellate Court. It is evident that the first respondent is aware of the decreeing of the suit, but he did not participate in the proceedings. However, the first respondent did not file an application under Order 9 Rule 13 of CPC to set aside the exparte order but filed the first appeal as the suit was decreed on merits after contest.
7. Before the first appellate Court, the first respondent herein argued that he remained exparte in the suit, he has got certain documents to be produced in support of his defence in the suit and he must be given an opportunity to disprove the case of the plaintiff/appellant. The first appellate Court simply accepted the plea of the first respondent and remanded the matter back to the trial court for fresh consideration summarily on the only ground that the first respondent must be given an opportunity to contest the matter. The first appellate Court has not recorded any findings as to how the decree and judgment passed by the trial court is vitiated or invalid. In the absence of such a finding by the first appellate Court, the order of the first appellate Court is liable to be set aside as it is against the provisions of Order 41 Rule 23-A of CPC.
8. In the decision reported in (Municipal Corporation, Hyderabad vs. Sunder Singh) (2008) 8 SCC 485 it was held by the Honourable Supreme Court that an order of remand should not be passed by the First Appellate Court as a matter of course. In fact, the Court should be slow in exercising the discretionary powers conferred under Rule 23. Further, before passing an order of remand, the first Appellate Court has to record reasons that re-trial was necessary and also give finding that the decree and judgment passed by the trial Court is liable to be reversed and only then, an order of remand should be passed. In Para Nos. 17, 18, 32, 33 and 34, it was held as follows:-
17. Order 41 Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court.
18. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order 41 Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.
32. A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order 41 Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order 41 Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence.
33. Order 41 Rule 23-A of the Code of Civil Procedure is also not attracted. The High Court had not arrived at a finding that a retrial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order 41 Rule 23 of the Code.
34. An order of remand cannot be passed on ipse dixit of the court. The provisions of Order 2 Rule 2 of the Code of Civil Procedure as also Section 11 thereof could be invoked, provided of course the conditions precedent therefor were satisfied. We may not have to deal with the legal position obtaining in this behalf as the question has recently been dealt with by this Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas."
9. It is also relevant to look into the decision of the Division Bench of this Court reported in (V. Munusamy (deceased) and others vs. M. Suguna) 2005 (1) CTC 107 wherein this Honourable Court held as follows:-
"7. Based on the averment in the affidavit filed in support of I.A. No. 7745 of 1987, filed under Section 4 (1) of the Act, the trial court, after satisfying itself, gave a finding that the petitioner therein/appellant herein is entitled to purchase the suit property on such finding satisfies one of the conditions prescribed under Section 4 (1) of the Act. No doubt, the trial court has not arrived the value of the shae purchased by the transferee i.e., plaintiff. However, as rightly pointed out by the learned senior counsel for the appellant, on this ground, the lower appellate court set aside the order of the trial Court, including the finding of the entitlement of the appellant to purchase undivided share alienated by the family member to stranger alienee. As rightly argued, the principles underlying the exercise of the power of remand by the appellate Court has not been properly applied or exercised by the lower appellate Court. Courts have held that only in exceptional cases where the judgment of the trial Court is wholly unintelligible or incomprehensible, the appellate Court can remand the matter for fresh disposal. Order 41, Rule 23 give ample power to the lower appellate Court to decide all issues, including appointment of a Commission for local inspection, secure finding from the trial Court. Even if certain mistakes crept in in the order of the trial court, the same can be rectified by the appellate Court itself, unless there are very compelling circumstances to make an order of remand. An order of remand should not be taken to be matter of course and the power of remand should be sparingly exercised. There should be always endeavour to dispose of the case by the appellate Court itself, when the commissions and omissions made by the first Court could be corrected by the appellate Court. In the case on hand, even if there is omission by the trial court regarding determination of the value of the share purchased by the plaintiff, in the light of the above discussion coupled with the mandate provided under Order 41 Rules 23 and 27, the appellate Court itself can ascertain the value either by appointment of a Commissioner or by getting a report from the trial Court. As said earlier, Section 4 91) of the Act gives option to any member of the family who is a co-sharer in respect of a dwelling house, a portion whereof has been transferred to a person who is not a member of such family, to purchase the share of such transferee if a suit for partition is filed by that transferee. On such option being exercised, the valuation of such share has to be determined. The crucial date for the purpose of fixing the valuation of the share of such transferee is the date when option to purchase in accordance with Section 4 of the Act is exercised by the defendant co-sharer.
10. In (Bhuvaneswari vs. Saraswathi Ammal) (2005) 3 MLJ 626, the Division Bench of this Court in para 3, held as follows:-
"3. We went through the judgment of the lower appellate Court. As already noted, enough oral and documentary evidence had been let in on the side of the plaintiff as well as on the side of the defendant. An order of remand cannot be for the mere purpose of remanding a proceeding to the lower Court. It is governed by the provisions of the Code of Procedure, commencing from Order 41 Rule 22 onwards. The appellate Judge's view that in order to enable the parties to have the suit properties identified, an Advocate Commissioner had to be appointed and for that purpose the suit must be remanded to the trial court, in our considered opinion, is not warranted on the facts of the case. If it is possible for the appellate Court to evaluate the evidence made available on record and come to its own conclusion one way or the other, then it is open to the lower appellate Court to come to the aid of the parties for filling up a lacuna which is found wanting in the recoreds.
11. In this connection, I am also fortified by the decision rendered by the Honourable Supreme Court reported in (P. Purushottam Reddy and another vs. Pratap Steels Ltd) (2002) 2 scc 686 wherein in para-10 and 11, it was stated thus:-
"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 23-A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 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 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 the 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 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 CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of 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 23-A 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 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these Rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati (AIR 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 Rules 23 and 23-A. 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 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting 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 23-A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.
11. In the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary. Neither Rule 23 nor Rule 23-A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule 25. So far as the objection as to maintainability of the suit for failure of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix A CPC is concerned, the High Court has itself found that there was no specific plea taken in the written statement. The question of framing an issue did not, therefore, arise. However, the plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to clause (c) of
Section 16 of the Specific Relief Act, 1963 is concerned, the pleadings are there as they were and the question of improving upon the pleadings does not arise inasmuch as neither any of the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial court. Nevertheless, the parties and the trial court were very much alive to the issue whether
Section 16(c) of the Specific Relief Act was complied with or not and the contentions advanced by the parties in this regard were also adjudicated upon. The High Court was to examine whether such finding of the trial court was sustainable or not in law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material inasmuch as the High Court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration and decision."
12. In (M/s. Sekaran Real Estates, a Partnership firm, by Managing Partner K. Chandrasekaran vs. Punjab National Bank, Mylapore Branch, Mylapore, Madras-4, by its Manager) 2000 (I) CTC 613 a learned single Judge in para No.4, held as follows:-
"It is clear from the above decisions as well as the provisions contained in Order 41, Rules 23 to 29, C.P.C. that duty is cast on the appellate Court to find that the decree of the trial court should be set aside. Even the fact that there are some defects or infirmities in the reasoning of the trial court is not a ground for the appellate court to remand the same to the trial court. The appellate Court should come to the clear conclusion that the findings of the trial court cannot be supported and must be set aside. Only in exceptional cases where the judgment of the trial court is wholly unintelligible or incomprehensible that the apprllate Court can remand the suit for fresh trial. A reading of the judgment of the appellate Court would show that it has not at all considered the judgment of the trial court nor pointed out infirmity or defect in the conclusion. Further, the learned appellate Judge has not borne in mind any of the principles mentioned above. A careful scrutiny of the judgment also shows that he never felt that the judgment of the trial court must be set aside or reversed. After allowing the amendment petition, the appellate court has simply directed the trial court to try the matter once again, after affording further opportunity to the parties, the directions contained in the order of remand are vague and too general in character. The fact that the lower appellate Court has not considered the reasoning or merits of the decree of the trial court has not been disputed by the learned counsel for the respondent-Bank.
13. In (Kannathal and four others vs. Arulmighu Kanniammal Karuppasamy Thirukoil, Pothanur Chettipalayam, Coimbatore, rep. by its Executive Officer and another) 2007 (2) CTC 49, a learned single Judge of this Honourable Court held in para No. 15 and 17 as follows:-
"15. It is also settled law that if the issues arising in the suit could be decided on the evidence available on record, the lower Appellate Court itself should decide the case on merits without unnecessarily ordering remand. A perusal of the pleadings in the case shows that all the necessary pleadings are available on record. Even if the Lower Appellate Court was of the opinion that it was necessary to give an opportunity to the plaintiff to amend the pleadings, that opportunity could have been given in the First Appellate Court itself and for that purpose, the remand is not needed.
16......
17. In the light of the law laid down by the Apex Court in the decisions reported in Ishwardas vs. State of Madhya Pradesh and others, AIR 1979 SC 55 and P. Purusottam Reddy and another vs. Pratap Steels Limited, 2002 (2) ctc 686, this Court is of the considered view that the Lower Appellate Court has committed an error of law in remanding the matter only for the purpose of affording an opportunity to the plaintiff to amend the pleadings and to adduce additional evidence. As laid down by the Apex Court it is not proper for the Appellate Court to remand the case to enable the parties to make good their lapse.
14. In (Sujatha vs. Vijay Anand and another) (2007) 4 MLJ 447, a learned single Judge of this Court in Para No.15 and 16, held as follows:-
"15. In the case on hand, the learned District Judge has not reversed or set aside the finding of the trial court. It is only to give opportunity to the plaintiffs to prove the Will dated 12.08.1982, the lower Appellate Court has remanded that suit to the trial court. The procedure adopted by the learned District Judge is not correct. The District Judge himself got jurisdiction and powers under Order 41 and Section 151 of C.P.C.
16. I am of the opinion that the order of remand of the suit cannot be sustained and therefore, the judgment and decree of the learned District Judge remanding the suit to the trial court are set aside. The learned District Judge is directed to take the first appeal and I.A. No. 53 of 2001 on its file and give opportunity to both parties with regard to the proof of the said document dated 12.08.1982 and dispose of the first appeal on merits.
15. In the aforesaid decisions, it was categorically held that order of remand should not be passed as a matter of course and without giving a finding as to how the decree and judgment of the trial court is perverse, illegal, especially, after amendment to Order 41 Rule 23A of CPC. In the case on hand, the first appellate Court remanded the matter back to the trial court for fresh consideration summarily on the only ground that the first respondent only to give an opportunity to the first defendant, who remained exparte before the trial court. No finding has been given by the first appellate Court as to how the decree and judgment passed by the trial court is vitiated warranting it to pass an order of remand. Under those circumstances, the Judgment and Decree dated 07.07.2006 in A.S. No. 7 of 2005 on the file of the Subordinate Judge, Thiruvarur is set aside. The matter is remanded to the first appellate Court for disposing of the first appeal on merits and in accordance with law after giving sufficient opportunity to both sides to prove their case.
16. In the result, the civil miscellaneous petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
03-09-2010 rsh Index : Yes Internet : Yes To The Subordinate Judge Sub Court Thiruvarur B. RAJENDRAN, J rsh CMA No. 20 of 2007 03.09.2010