CMAs These civil miscellaneous appeals have been filed under Order XLIII Rule 1(u) of Civil Procedure Code to set aside the judgment and decree dated 30.11.2001 made in A.S.No.42 of 2001 and A.S.No.40 of 2001 of the learned Additional Subordinate Judge, Myladuthurai in setting aside the judgment and decree made in O.S.No.98 of 1998 and O.S.No.217/1998 on the file of Court of District Munsif, Sirkali dated 15.03.2001.
For Appellant : Mr.A.Muthukumar For Respondent : Mr.S.Rajendran COMMON JUDGMENT The appellant is respondent in A.S.No.42/2001 and 40/2001 on the file of the Additional Subordinate Judge, Mayiladuthurai. Both the appeals arose from the judgments passed in O.S.No.98/98 and 217/98 on the file of the District Munsif Court, Sirkali. The Appellant is defendant in O.S.No.62 of 2001 and plaintiff in O.S.No.98/98. The respondent is plaintiff in O.S.No.62/01 and he is defendant in O.S.No.98/98.
2. In O.S.No.217/1998, reliefs of recovery of possession and further removal of roofed superstructure and also for mesne profits have been prayed for. While O.S.No.98/98 was filed for permanent injunction. The learned District Munsif passed a common judgment in favour of this appellant and the respondent preferred two appeals in A.S.No.40/2001 and 42/2001 on the file of the learned Additional Subordinate Judge, Mayiladuthurai.
3. The respondent filed a petition in I.A.No.62/2001 under Order XXVI Rule 9 of Civil Procedure Code for appointment of an Advocate-Commissioner to inspect the suit properties and to locate the same with the assistance of a qualified Surveyor. The learned Additional Subordinate Judge, heard both the parties in both appeals and has rendered a common judgment remanding both the mattes to the Trial court to appoint an Advocate-Commissioner to inspect the property with the assistance of a qualified Surveyor, to file a report and to proceed with further trial affording opportunities to both parties to let in evidence, both oral and documentary and to render judgment. The said remand orders are being challenged before this court in these civil miscellaneous appeals.
4. The learned Additional Subordinate Judge, after extracting the contentions of both parties and the respective pleadings of both sides as well, recorded a finding that it is not debatable that the extent of the suit property is 2= cents and the same is comprised in Survey No.280/2 which is sprawling to an extent of 2 acres and 2 cents, that in the said survey number several persons have put up houses and are residing, that the respondent (appellant herein) has not produced earlier documents of title and Ex.A1 to A5 would show that the plaintiff had been in possession even ten years anterior to 1997, that judgment in O.S.No.13/1995, (Ex.B3) was followed by execution for delivery in E.P.No.40/1998 and on the strength of Ex.B4-Delivery warrant, the defendant took delivery of the property and as per Ex.B2, it was argued that there is no connection between the property in Ex.B2 and the present suit property and on the strength of Ex.B2 to 4, the court below has opined that it could not be decided whether the property belongs to the defendant, that it is to be observed that both the properties are different and that the property referred in Ex.B2 is relatable to the suit property.
5. It is also observed by the Appellate court that if 2= cents is located in Survey No.280/2, there is a possibility of granting relief to the appellant (respondent herein) and that in the interest of justice, the matter has to be remitted back to the Trial court for a fresh trial as to the points which would be placed before the court by the Commissioner's report. The conclusive portion of the judgment of the Appellate Court is as follows:-
VERNACULAR RECORDS DELETED
6. The learned counsel for the appellant Mr.A.Muthukumar would argue vehemently that the order of remand by the appellate court could not be justified on any account, that the appellate court has not set aside the finding of the trial court, that this petitioner was entitled to the property, that no reasons were adduced for appointment of an Advocate-Commissioner and the same is not maintainable at the appellate stage, that no commission can be issued to gather evidence at the instance of the parties and that the title and possession of the parties to a property cannot be decided by an Advocate-Commissioner.
7. Per contra, the learned counsel for the respondent Mr.S.Rajendran would submit that inasmuch as the Appellate Court has furnished sufficient finding in the judgment and the reasons assigned thereon are adequate for remanding the matter as per the provisions of Code of Civil Procedure and hence there is no wrong in the order impugned.
8. This court, need not go into the claims of the parties and the merits of the case. Suffice it to decide whether the Appellate Court is justified in remanding the matters to the Trial Court for further trial. In order to have a thorough glance of the matter, it is profitable to extract the relevant provision in Civil Procedure Code.
Order XLI Rule 23
23. Remand of case by Appellate Court Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to readmit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
23A. Remand in other cases Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.
9. If the Appellate Court is of the view that the Trial court decided the case otherwise than a preliminary report and the decree is reversed in appeal a re-trial is inevitable. As per law settled by the Hon'ble Supreme Court, the powers of the courts are restricted to direct remand of the matters to the Trial court. Before passing the order of remand, the Appellate Court has to ensure that the circumstances set out in Rules 23 and 23A of Order XLI of the Civil Procedure Code are satisfied. If the purpose of remand outside the scope of these provisions, is discerned, then the Appellate Court shall avoid remand. The sections have been incorporated in the Civil Procedure Code, to restrict the power of the Appellate courts to remand several matters in which the appellate court finds doubts with regard to certain points which in fact could be decided by the Appellate Court itself on the available materials. To put it differently, the object of introduction of these provisions is to circumvent the powers of the Appellate Courts to take liberal view in remanding the matters to the Trial court, where retrial is not warranted, which would lead to elongation of the trial proceedings indefinitely.
10. The learned counsel for the appellant would rely upon a decision of a division bench of this court in 2002(3) MLJ 234 in Jayaraman v. Kumaran and others, in which, this court, after undertaking a elaborate discussion on the subject, after referring to various decisions of Supreme Court and this court had finally held that if the scope of remand is out of the parameters adumbrated under Rules 23 and 23A of Order XLI, then the remand has to be discountenanced. In the judgment, a decision of the Supreme Court in 2002 SC 771 in P.Purushottam Reddy v. M/s.Pratip Steels Limited has also been referred and followed. In the said decision, the Apex Court has settled law as follows:-
" In cases where additional evidence is required to be taken in the event at 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 sent it to the appellate court. In 1976, Rule 23-A has been inserted in O.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 23A 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 v. Sushila, A.I.R. 1965 S.C. 365 at 399, it is well settled that inherent powers can be availed 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 the Rule 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 O.20, Rule 3 or O.11, Rule 31 of the C.P.C and hence it is no judgment in the eye of law it may set aside the same and send the matter back to re-writing 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 of the C.P.C. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided."
The above said legal principle throws much light on this subject. The order of remand cannot be made on the request of the parties nor on flimsy grounds but strictly be within the ambit of the rules.
11. The learned counsel for the appellant also garnered support from a decision of this court in 2000(3) MLJ 89 in Rathnasamy Mudaliar and others V. Rasu in which it is observed as follows:-
" From a conspectus of the various decisions referred above the following guidelines emerge. The appellate court must come to the conclusion on the pleading or on the evidence placed before it or on law that the judgment and the decree of the trial court are erroneous and therefore liable to be reversed or set aside. There must at least be a finding that there has been a misunderstanding of the pleadings of the parties or denial of an opportunity to place the materials they wanted to place before the Court in support of their respective claims. In the absence of such a finding there can be no reversal or setting aside of the judgment and the decree of the trial court and consequent remand."
12. Following the decisions laid down by the Apex court, it has to be held that the order of remand could be justified if the purpose for which it would come within the purview of Rule 23, 23-A or 25 of CPC.
13. Adverting to the facts of present case, the learned Additional Subordinate Judge, Mayiladuthurai has given adequate findings in his judgment as to the rights of the parties to be adjudicated upon. In his opinion, the lie of the property has not been established by any of the parties and only if the same is located in the entire extent of 2 acres and 2 cents comprised in Survey No.280/2, then the entitlement of a particular party could be found. There is also a clear finding that it transpires that the properties found in the plaint schedule and Ex.B2 are different. The suit property, a tiny portion of 2= cents in a larger extent of 2 acres and 2 cents, has to be located and identified so as to enable the court to approve the oral evidence on record. If the property is not identified, the courts below could not make a final and complete adjudication of the case, because, each of the party has filed a separate suit for different reliefs and it is incumbent upon each of them independently to prove their title and possession in the property. If only one suit is available, the court may come out a finding that the plaintiff does not prove his title and hence he is not entitled for relief. The defendant in one suit is plaintiff in another suit. Hence as far as the facts go as above, it is inevitable to have ample materials and evidence before the court to decide the matter.
14. Coming to the import of the provisions in Rules 23 and 23-A of Order XLI of CPC, a clear finding has to be furnished by the Appellate Court for remanding matter. As per the amendment to Rule 23 of Order XLI of CPC by Madras High Court, if the Appellate court considers it necessary in the interest of justice to remand the case, it can be done and as per Rule 23A, if the court considers a re-trial is necessary, the remand could be ordered. Bearing in mind the above said statutory requirements, while the present matter is subjected to scanning, it is to be observed that the Appellate Court has expressed its view unambiguously that there are sufficient grounds for re-trial and the remand could be in the interest of justice.
15. Since this court reaches a conclusion that the Appellate Court's order of remand could be justified, which has satisfied the requirements envisaged in Rules 23 and 23A of Order XLI, the order challenged need not be disturbed and there is no legal infirmity in the same, it deserves to be confirmed and it is accordingly confirmed.
16. In fine, both the civil miscellaneous appeals are dismissed without cost. The Trial court shall decide the matter as per the direction of the Appellate Court, without getting influenced by any of the observations already recorded by the Trial Court and the Appellate Court.
asr/ To The Additional Subordinate Judge, Mayiladuthurai