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2009 Supreme(Mad) 345
MADRAS HIGH COURT
M. Jaichandren, J.
Jayakumar
Versus
State of Tamil Nadu, rep. by the District Collector, Kanyakumari District, Nagercoil and Others
C.M.A. (MD) No. 921 of 2008 and M.P. (MD) No. 1 of 2008
Decided on : 27th January, 2009.
K. Sree Kumaran Nair, for Appellant
So. Paramasivam, Government Advocate, for Respondents
The first Appellate Court should permit parties to adduce additional evidence and decide the matter on merits, rather than remanding the case, as per the relevant provisions of the Code of Civil Procedure, 1908.
Headnote:
Remand - Property Dispute - Code of Civil Procedure, 1908 - Order 41 Rule 27
Fact of the Case:
The appellant filed a suit for permanent injunction to restrain the respondents from trespassing into the property. The trial court decreed the suit in favor of the appellant. The respondents appealed, and the first Appellate Court remanded the matter back to the trial Court for fresh disposal.
Finding of the Court:
The Court found that the first Appellate Court erred in remanding the matter back to the trial Court, as it could have permitted the parties to adduce additional evidence and decide the matter on merits and in accordance with the law.
Issues: The main issue was whether the first Appellate Court was right in remanding the case to the trial Court.
Ratio Decidendi: The Court held that the first Appellate Court should have allowed and appreciated additional evidence instead of remanding the matter back to the trial Court, as per the relevant provisions of the Code of Civil Procedure, 1908.
Final Decision: The Civil Miscellaneous Appeal was allowed, the judgment and decree of the first Appellate Court were set aside, and the first Appellate Court was directed to retain the appeal on its file and dispose of the same on merits and in accordance with the law, after affording due opportunity to the parties to adduce the required evidence.
M. JAICHANDREN, J.
This Civil Miscellaneous Appeal has been preferred by the appellant against the judgment and decree, dated 2.7.2007, made in A.S. No. 122 of 2006, on the file of the Sub Court, Padmanabhapuram, reversing the judgment and decree, dated 31.1.2006, on the file of the Additional District Munsif, Padmanabha- puram, in O.S. No. 106 of 2003.
2. The appellant is the plaintiff in the suit O.S. No. 106 of 2003, on the file of the Additional District Munsif, Padmanabhapuram, and the respondents are the defendants in the said suit. The suit in O.S. No. 106 of 2003, had been filed by the appellant/plaintiff praying for a decree of permanent injunction to restrain the respondents/defendants and their subordinates from trespassing into the plaint schedule property, and from evicting the appellant/plaintiff from the schedule mentioned property.
3. It has been stated that the property shown in the schedule, forming part of the plaint, is within Churuload village. The adjacent property is a part of the Velimalai reserve forest. The boundaries between Velimalai Reserve Forest and Churuload village had already been fixed by a notification of the year, 1920, marked as Exhibit A-12. The appellant/plaintiff has stated that the judgment and decree of the Sub Court, Padmanabhapuram, dated 2.7.2007, made in A.S. No. 122 of 2006, is against law and the weight of evidence. Instead of confirming the judgment and decree of the trial Court, dated 31.1.2006, made in O.S. No. 106 of 2003, on the file of the Additional District Munsif, Padmanabhapuram, the Subordinate Judge, Padmanabhapuram, had erred in remanding the matter to the trial Court, without setting aside the judgment and decree of the trial Court, on valid grounds.
4. Only if the appellate Court is not in a position to render an effective disposal, on the basis of the evidence available on record, the appellate Court could call for findings from the trial Court. Remand of a matter could be resorted to only if such findings could not be called for. If the parties could be permitted to file additional evidence, under Order 41 Rule 27 of the Code of Civil Procedure, 1908, the Appellate Court should not remand the case. The Appellate Court ought not to have remanded the matter to the trial Court to fill up a lacuna or a gap in the evidence. If the unsuccessful parties are permitted to fill up the gaps in the evidence available, it would cause irreparable loss and grave prejudice to the successful parties.
5. It has been further stated that the learned Subordinate Judge had overlooked the fact that on the basis of the judgment of the Kerala High Court in A.S. No. 486/1088 M.E., a notification had been issued by the Government in the year, 1920, under which the boundaries of Velimalai reserve forest were fixed. The said Notification had been marked, as Exhibit A-12. According to the said notification, the Velimalai reserve forest ends with the Velimalai village on the North. No portion of the Velimalai reserve forest occupies Churuload village. Admittedly, the property shown in the schedule to the plaint falls within Churuload village.
6. The appellant/plaintiff had purchased the property from Namasivayam Pillai, who was the erstwhile owner of the land. The various reasons given by the trial Court, while granting a decree in favour of the appellant/plaintiff, had not been considered by the first Appellate Court. No reason has been given by the first Appellate Court to remand the matter back to the trial Court. The admission of the Forest Ranger that no portion of the Velimalai reserve forest was within Churuload Village has been overlooked by the first Appellate Court. In such circumstances, the judgment and decree, dated 2.7.2007, made in A.S. No. 122 of 2006, by the Subordinate Judge, Padmanabhapuram, is to be set aside, and a direction is to be issued directing the Subordinate Judge, Padmanabhapuram, to dispose of the appeal, on merits.
7. Before the trial Court, three witnesses ha
