Civil Revision Petitions filed under Article 227 of the Constitution of India against the order dated 10.04.2007 made in I.A.Nos.13 and 230 of 2007 in A.S.No.92 of 2006, on the file of the First Additional Subordinate Judge, Coimbatore.
For Petitioner : Mr.C.Deivasigamani in both CRPs and appellant in C.M.A. For Respondent 4 : Mr.C.R.Prasannan in CRP NPD 2451/08 and for Respondents 1 to 5 and 7 in C.M.A.No.1324/08. * * * COMMON ORDER In view of the facts and circumstances of the case are one and the same, these petitions are taken up together, and disposed of by a common order.
2. The petitioner is the first defendant in O.S.No.2489 of 2004, on the file of the District Munsif Court, Coimbatore, which is a suit for partition filed by one to fourth respondents and one Suseela since died. The suit was dismissed by the learned Principal District Munsif, Coimbatore, on 11.02.2005. Thereupon, the plaintiffs preferred the appeal in O.S.No.92 of 2006, on the file of the Sub-Court, Coimbatore. Pending the hearing of the appeal, the plaintiffs filed three interlocutory applications in I.A.Nos.13, 14 and 230 of 2007 for impleading the parties, who are stated to have got joint interest in the suit properties. After hearing both sides, the Appellate Court deems it fit to remand the matter to the Trial Court and remanded the same, allowing the applications in I.A.No.13 of 2007 and I.A.No.230 of 2007, and dismissing the I.A.No.14 of 2007. The plaintiffs have not taken the matter in appeal from the order passed in I.A.No.14 of 2007. The Civil Miscellaneous Appeal has been filed against the remand order and the revision petitions have been brought by the plaintiffs challenging the order before this Court, in favour of the plaintiffs.
3. It is advantageous to have the allegations as contained in the interlocutory applications in order to have a thorough glimpse of the matter.
3.1. In I.A.No.13 of 2007, it is alleged in the affidavit that in the written statement a defence was raised by the first defendant that necessary parties have not been impleaded, that Namagiri is daughter of the second wife of the father-in-law of the second appellant (J.N.Lakshminarayanan) the said Namagiri died during the trial of the suit. The said Namagiri's legal heirs have left out in order to avoid further complications. They have to be impleaded as parties. The trial was over, arguments were heard and the suit was reserved for judgment. At that time, the petitioner filed applications to reopen the case and also an application under Order 1, Rule 10 (2) of CPC to implead the parties. But, the said petitions were not entertained by the Trial Court and the judgment was pronounced. If the parties were not impleaded in the appeal, the appellant is put to great prejudice. Hence, in the original suit the legal representatives of the said Namagiri have to be impleaded.
3.2. In the application in I.A.No.230 of 2007 also, identical allegations are found as contained in I.A.No.13 of 2007. In this petition, one Savithri, wife of Nanjundan, is sought to be impleaded as party.
3.3. The common allegations contained in the counter filed by the present appellant, it is stated that the essential issue raised in the suit is non-joinder of necessary parties. On 23.07.1997, O.S.No.368 of 1997 was filed and on 06.08.1998 written statement was also filed. After trial the suit was transferred from Sub Court to Principal District Munsif Court for disposal on the point of jurisdiction and re-numbered as O.S.No.2489 of 2004. On 11.02.2005, the interlocutory applications were filed by the plaintiffs and on the same day the judgment in the suit was pronounced stating that already judgment was pronounced and hence, the petitions would not be entertained. It has not been stated when the petitions were returned and received by the first plaintiffs. After eight years, these petitions have been filed, only with a mala fide intention to drag on the proceedings. Even in the grounds of appeal, nothing was mentioned about these petitions. Hence, the petitions may be dismissed.
3.4. The appeal and the interlocutory applications were hotly contested by the appellant/first defendant and even surely remand order was passed by the Appellate Court. Mr.C.Deivasigamani, learned counsel appearing for the appellant/first defendant would strenuously contend that the Appellate Court itself should have disposed of the appeal deciding the issue before the Court, brought about by filing of interlocutory applications and remanding of the case is not at all required for any adjudication and that the petitions to lead the parties are highly belated only to drag on the matter.
4. Conversely, Mr.C.R.Prasannan, learned counsel appearing for the plaintiffs would submit that even though the proposed parties were not impleaded earlier to the commencement of trial, still they are having joint interest over the parites, they being legal representatives of other co-sharers in the properties, in whose absence, no complete adjudication could be made and that the first defendant would never get prejudiced by impleading of the parties.
5. The learned Principal District Munsif has observed that on the date of judgment on 11.02.2005, the Trial Court had weakest the issue which are appears to be entirely different from the issues which were framed at the inception and hence, after recast of the issues, both sides should have been granted ample opportunities to establish their claims, that it is admitted by both parties that the suit properties originally belongs to one Subramaniya Iyyar and both parties are his heirs and in view of allowing of the petitions in I.A.No.13 of 2007 and I.A.No.230 of 2007 on the basis of the issues of recast, a fresh decision has to be obtained and that bringing the legal representatives of the co-sharers to the record is essential. Aggrieved as against the above said order the first defendant is before this Court.
6. There is no need to go into the merits of the matter, pleadings, evidence recorded and the discussions taken up by both the Courts below. The only question before this Court is that whether the order of remand by the Appellate Court is warranted and whether it would satisfy the requirements of the relevant provisions. This is a suit for partition and it is the common knowledge and practice that all the co-sharers shall be parties to the suit and the suit must be a comprehensive one including of the persons interested and of the properties owned and enjoyed by the co-sharers. If any co-sharer or his heirs are left under given circumstances, they could be brought on record for final and complete adjudication of the case, which would be helpful to avoid the multiplicity of proceedings and inconsistent decisions by different Courts in future. This Court has to follow the principles and guidelines formulated in this regard by the Apex Court and the earlier decisions of this Court.
7. The learned counsel appearing for the first defendant relied upon a decision reported in AIR 2002 Supreme Court 771, (P.Purushottam Reddy and another v. M/s.Pratap Steels Ltd.,) it is held 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 de hors the Rules 23 and 23A. 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 11, Rule 31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. It is further held that an appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.
8. In AIR 2008 Supreme Court 2579 (Municipal Corporation, Hyderabad v. Sunder Singh) wherein the Apex Court has held that the application for adducing secondary evidence when the suit was not decided on preliminary issue, Order 41, Rule 23, in such case is not available and the said provision is not also available and on what basis, the secondary evidence was allowed to be led not clear. It is further observed that the remand order should not be passed routinely and if the Appellate Court does not agree with the decision of the Trial Court, it has to come with a proper finding of its own and it cannot shirk its duties. In AIR 1998 Kerala 285 (M.J.Thomas and others v. State of Kerala and another) wherein a Division Bench of Kerala High Court has held that the power of remand by the Appellate Court has to be exercised sparingly and endeavour of the Appellate Court should be to dispose of the case itself.
8.1. In AIR 2008 Supreme Court 1282 (Smt.Bachchan Devi and another v. Nagar Nigam, Gorakhpur and another) it is held as follows:
The provision under Order 41, Rule 25 becomes operative when the appellate Court comes to the conclusion about the omission on the part of the lower Court to frame or try any issue. Once the appellate Court directs the lower Courts to do so, it is incubment upon the trial Court to take additional evidence required. There may be cases where additional evidence may not be required. But where the additional evidence is required, then the lower Court has to return the evidence so recorded to the appellate Court together with the findings thereon and the reasons therefor. Requirement for recording the finding of facts and the reasons disclosed from the facts is because the appellate Court at the first instance has come to the conclusion that the lower Court has omitted to frame or try any issue or to determine any question of fact material for the right decision of the suit on merits. Where a finding is called for on the basis of certain issues framed by the appellate Court, the appeal is not disposed of either in whole or in part. Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the Court of the first instance.
AIR 1974 SC 1702, Rel. on."
8.2. It is held in AIR 1999 Supreme Court 1125 (Ashwinkumar K. Patel v. Upendra J. Patel and others) that the powers of High Court should not ordinarily be exercised merely because in its view reasoning of lower Court in some aspects was wrong and the said orders lead to unnecessary delays and cause prejudice to the parties to the case.
8.3. In 2007 (1) CTC 262 (Shanti Devi v. Daropti Devi and others) it is held as follows:
"The power of remand vests in the Appellate Court either in terms of Order 41, Rules 23 and 23A or 41, Rule 25 of the Code of Civil Procedure. Issue No.4 was held to have been wrongly framed. Onus of proof was also wrongly placed and only in that view of the matter the High Court thought it fit to remit it to the learned Trial Judge permitting the parties to adduce fresh evidence. It, therefore, required the learned Trial Judge to determine a question of fact, which according to it was essential, upon reframing the issue."
8.4. In (1988) MLJ 196 (Rajalakshmi and others v. Minor Venkatesan and others), it is held that an order of remand passed by the District Judge without coming to the conclusion that the decree and judgment of the Trial Court is to be set aside but allowing the plaintiff to fill up lacuna is certainly unsustainable.
9. The learned counsel appearing for the plaintiffs would place much reliance upon the decision of the Supreme Court in (2003) 8 SCC 289 (Ravinder Kaur v. Ashok Kumar and another), wherein it is observed that the Superior Court precluded from giving conclusive finding in matters which it remands. The Supreme Court in (2004) 1 SCC 317 (Khetrabasi Biswal v. Ajaya Kumar Baral and others) has held that (para 6) the procedural law as well as the substantive law both mandates that in the absence of a necessary party, the order passed is a nullity and does not have a binding effect. In 2007 (3) CTC 332 (Dhanalakshmi and others v. P.Mohan and others) wherein the Supreme Court dealt with the application for impleadment of parties, allowed the application for impleadment while the appeal was pending. In the said decision, Their Lordships have observed as "we, therefore, set aside the order passed by the High Court and order the Application for impleadment filed by the appellants herein and array them as party defendatns Nos.7, 8 and 9 in the Suit. The appellants will now be at liberty to file the written in the pending suit." In (2007) 5 MLJ 1143 (Chokkappan v. Subramani and others) this Court has opined that as per decision in V.Munusamy v. M.Suguna 2005 (1) CTC 107 it is held that unless there are compelling circumstances in making the order of remand, the appellate Court shall not pass such orders.
9.1. In AIR 1995 Allahabad 7 (Committee of Management, Ratan Muni Jain Inter College and another v. III Additional Civil Judge, Agra and others) it is stated that the theory of dominus litus should not be over stretched in the matter of impleading of parties, because it is the duty of the Court to ensure that if for deciding the real matter in dispute, a person is necessary party, the Court can order such person to be impleaded, and that merely because the plaintiff does not choose to implead a person is not sufficient for rejection of an application for being impleaded, the provisions of Order 1, Rule 10(2) CPC are very wide and the powers of the Court are equally extensive.
9.2. In 2009 (3) CTC 760 (Balamani and another v. S.Balasundaram) after following a Division Bench decision of this Court in A.Ramachandra Pillai v. Velliammal (died), 1987 (100) LW 486, would hold that in spite of dismissing the claim of the plaintiffs in this appeal on the ground of non-joinder of necessary parties, the matter could be remitted back to the Trial Court and that would obviate fresh filing of a suit for partition.
9.3. A Division Bench of this Court in the judgment reported in 1993 TNLJ 143 (Peter and others v. Royappan and others) has held that when a necessary party was not impleaded in the suit, before the Appellate Court, the necessary party may be sought to be impleaded and the procedure be followed is to remand the suit finally to the Trial Court. This Court again dealt with the scope of the remand of the case to the lower Appellate Court in a decision reported in 2000 (II) CTC 214 (Chinnammal and 8 others v. Elumalai and 4 others) and the remand of the suit is justified.
10. While this Court has followed the above said decisions, it emerges that even though the power of remand of the Appellate Court has to be sparingly used, because the present suit is for partition, every co-sharer and his legal representatives have to come on record for appropriate and final adjudication of the matter in issue conclusively. In case, if any party is left out, and if the suit is allowed to continue and disposed of at a point of time, without the party on the array in the suit or appeal, the said party might initiate a fresh action to establish his claims before the Court on the strength of contention that he is also interested in the property. If such initiation of the suits are forthcoming, then, the adjudication in the said lis would unsettle the settled position and in case, if the parties to the earlier suit had taken possession of the properties, then it would lead to dislocation and the parties would experience considerable hardships. Further, refusal to implead a party in a suit would lead to inconsistent opinions of different Courts on the similar subject matter between the same parties, which would not subserve the interest of justice, in case if the person is declined to be impleaded as a party in the suit.
11. It cannot be stated that to fill up the lacuna, a party to the case would seek to implead a party. The Court can very well ascertain the bona fide of the party, in a given circumstances, in the light of the allegations contained in the counter. It is to be noted that the Appellate Court has not rendered any findings on the merits of the case nor had it formulated any point for consideration to decide the rights of the parties. Particularly speaking, in this case, remand of the case has not been ordered expecting that some additional evidence would be forthcoming, which might create an impact on the decision of the entire suit, which is violative of the provisions contained in Order 41, Rule 30 and 31 of CPC as held in AIR 1985 Gauhati 107 (Mohmmed Saifur Rahman v. State of Assam and others).
12. In AIR 1992 Kerala 390 (DB) (E.Madhavi Amma and others v. E.Indhusekharan and others), the Kerala High Court has held that the Court retains the power to implead a party who is interested in the outcome of the case even after the period of limitation, provided, reasons are available and the Court records them. As far as the present case is concerned, the reason adduced in the affidavit in filing the impleading petition before the Appellate Court by the first appellant is that his wife had settled in North India, due to the loss of memory and absence of knowledge, she did not implead and she also died and that even without application, the lower Court ought to have directed impleadment suo motu. In Purushottam Reddy's case, supra, the Supreme Court has held that it is only in exceptional cases the Court may exercise the power of remand de hors the Rule 23 and 23A and that in order to protect the valuable rights of the parties and if the Appellate Court finds that the Trial Court has not disposed of the case satisfactorily, then, remand is allowed.
13. For the foregoing reasons, this Court is of the considered view, following the decisions of the Supreme Court cited supra, that the remand becomes inevitable for the Appellate Court in view of filing of the petitions for impleading parties in a partition suit. It is not denied in the counter for the petition to implead the parties that the proposed parties are not at all co-sharers in the suit properties. The only contention is that the steps should have been taken before the Trial Court. Hence, the order of remand and the orders passed on the interlocutory applications for impleading the parties do not call for any interference of this Court which deserve to be confirmed and accordingly, they are confirmed. The Civil Miscellaneous Appeal and the Civil Revision Petitions would suffer dismissal.
In fine, the Civil Miscellaneous Appeal and the Civil Revision Petitions are dismissed. No costs.
srm To
i) The First Additional Subordinate Judge, Coimbatore.
ii)The Principal District Munsif, Coimbatore