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SHANMUGAM versus ESAKIAMMAL

High Court of Madras

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Shanmugam v. Esakiammal - C.M.A (MD) No.386 of 2006 [2007] RD-TN 2039 (21 June 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated : 21/06/2007

CORAM

The Honourable Mr.Justice S.NAGAMUTHU

C.M.A (MD) No.386 of 2006

and

C.M.P (MD) No.2003 of 2006 and

M.P (MD) No.1 of 2007

1. Shanmugam

2. Parvathi Ammal .. Appellants

vs.

Esakiammal .. Respondent

Prayer

This appeal filed under Order 43 Rule 1 (v) C.P.C., against the Judgment and decree made in A.S.No.221 of 2004 dated 25.08.2005 on the file of the I Additional Sub Judge, Tirunelveli reversing the Judgment and decree made in O.S.No.59 of 2002 dated 30.03.2004 on the file of the Principal District Munsif Court, Tirunelveli and remanded the suit to the Principal District Munsif Court, Tirunelveli.

For Appellants : Mr.R.S.Ramanathan

For Respondent : Mr.K.K.Ramakrishnan

:ORDER



The defendants in O.S.No.59 of 2002, on the file of the learned Principal District Munsif, Tirunelveli, who are the respondents in A.S.No.221 of 2004, on the file of the learned I Additional Subordinate Judge, Tirunelveli, are the appellants herein. The respondent herein is the plaintiff in the said suit and appellant before the lower Appellate Court.

2. Originally, the respondent herein has filed O.S.No.59 of 2002, before the trial Court, praying for a decree declaring that the II schedule property is part and parcel of the I schedule property consequentially for mandatory injunction directing the defendants, their derivatives in title to remove the unlawful construction in the II schedule property within a date to be fixed by the court, failing which the same may be removed through due process of the Court and for costs.

3. The appellants herein have filed written statement resisting all the averments made in the plaint. On completing trial, the trial Court dismissed the said suit against which an appeal was preferred by the unsuccessful plaintiff in A.S.No.221 of 2004. The lower Appellate Court by Judgment and Decree dated 25.08.2005, has allowed the appeal setting aside the Judgment and decree of the learned Principal District Munsif, Tirunelveli and remanding the suit to the trial Court for the purpose of framing additional issues and to have de-nova trial afresh. Challenging the same, this appeal has been filed.

4. Heard the learned counsel for the appellants and the learned counsel for the respondent.

5. I have gone through the entire Judgment of the lower Appellate Court. Though the learned Principal District Munsif has given findings of all the issues framed by him, the lower Appellate Court has not either confirmed or set aside those findings of the trial Court. However, the lower Appellate Court would say that an important issue has been omitted to be framed.

6. According to the lower Appellate Court, though there is a specific plea of adverse possession claimed by the defendants, no issue was framed on that. That apart during the pendency of the appeal, an Advocate Commissioner was appointed and he has also submitted his report. According to the lower Appellate Court, the Advocate Commissioner's report also requires to be considered only by the trial Court. The lower Appellate Court has therefore, framed three additional issues and remanded the case back to the trial Court for de-nova trial afresh which, according to the learned counsel for the appellants is not legally sustainable.

7. According to the learned counsel for the appellant, under Order 41 Rule 25, having found that the trial Court has omitted to frame certain issues, the lower Appellate Court ought to have framed necessary additional issues and referred those issues to the trial Court with a direction to the trial Court to proceed with the trial only with reference to those issues and to return the issues to the Appellate Court together with its findings thereon and the reasons therefor within a time frame. Instead of that, according to the learned counsel for the appellant, the lower Appellate Court has simply remanded the entire case to the file of the trial Court with a direction to conduct de-nova trial afresh. The learned counsel for the appellant would further submit that it is beyond the jurisdiction of the lower Appellate Court.

8. Per contra, the learned counsel for the respondent would rely on Order 41 Rule 23 wherein, it is stated that while reversing the order setting aside the decree under appeal if necessary, in the interest of justice, the appellate Court can very well remand the case and therefore, in the case on hand, the lower Appellate Court was right in remanding the case to the trial Court for de- nova trial afresh.

9. I have considered the rival contentions and also perused the materials available on record.

10. A close scrutiny of the Judgment of the lower Appellate Court would show that the lower Appellate Court has not either reversed or set aside any of the findings given by the trial Court on any of the issues which were tried. If the suit is to be remanded back to the trial Court for de-nova trial afresh, as required under Order 41 Rule 23, the lower Appellate Court should have either reversed or set aside the findings of the trial Court. In this case, the lower Appellate Court has not done so and therefore, I am of the view that the argument of the learned counsel for the respondent that the impugned order is governed by Order 41 Rule 23 cannot be accepted.

11. As pointed out earlier, the lower Appellate Court has remanded the case after framing additional issues without expressing any opinion about the findings of the trial Court on the original issues. As rightly argued by the learned counsel for the appellants, under Order 41 Rule 25, having framed Additional issues, the lower Appellate Court should have referred those issues alone to the trial Court with a direction to try the same and to send back the findings along with the evidence and thereafter, the lower Appellate Court should have proceeded to dispose of the appeal as required under Order 41 Rule 26. Thus, obviously, what has been done by the lower Appellate Court in this case is not in accordance with law. Therefore, I am not able to concur with the procedure adopted by the lower Appellate Court.

12. In the result, the Judgment and decree passed by the learned I Additional Subordinate Judge, Tirunelveli, made in A.S.No.221 of 2004, is set aside and the appeal is allowed. The lower Appellate Court is directed to refer the additional issues to the trial Court as required under Order 41 Rule 25 and to dispose of the appeal as required under Order 41 Rule 26. Consequently, connected C.M.P and M.P are closed. No costs.

To

1. The Principal District Munsif Court,

Tirunelveli.

2. The I Additional Subordinate Judge,

Tirunelveli.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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