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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
R. Shantha – Appellant
Versus
Ramasamy Gounder and Others – Respondents
C.M.A. No. 1619 of 2018, C.M.P. No. 12873 of 2018
Decided On : 08-01-2021
Remand - Civil Appeal - Order 41 Rule 23, Order 41 Rule 33, Section 107 C.P.C., Order 20 Rule 5 - The court discussed the provisions of Order 41 Rule 23, Order 41 Rule 33, Section 107 C.P.C., and Order 20 Rule 5. It emphasized that remand should only be made for suits decided as preliminary issues, and the appellate court has the power to pass any decree or order that ought to have been passed. The court also highlighted the requirement for the court to state its decision on each issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.
Fact of the Case:
The plaintiff appealed the decision of the first Appellate Court to remand the matter back for re-trial, arguing that the trial Court had considered the issues and passed orders, and the first Appellate Court should have decided the matter on merits. The defendant contended that the trial Court had not considered the documents or evidence in the right perspective, and the first Appellate Court rightly remanded the matter for re-trial.
Finding of the Court:
The Court found that the remand was unacceptable as the trial Court had considered the issues and passed orders, and the first Appellate Court should have adjudicated the matter on merits. It emphasized that remanding the matter back would cause greater prejudice to the parties and lead to prolongation of the litigation, which goes against the principles of providing complete justice and speedy disposal of cases.
Issues: The main issue was whether the first Appellate Court's decision to remand the matter back for re-trial was justified, and whether the trial Court had considered the documents and evidence in the right perspective.
Ratio Decidendi: The Court held that the first Appellate Court should have adjudicated the matter on merits and made a finding based on the documents, rather than remanding the matter back for re-trial. It emphasized the need for complete justice, speedy disposal of cases, and the exercise of power by the Court to provide a decision on the merits.
Final Decision: The judgment and decree dated 12.06.2017 in A.S. No. 25 of 2012 was set aside, and the present Miscellaneous Appeal No. 1619 of 2018 was allowed. The first Appellate Court was directed to hear the matter on merits and in accordance with the law, and to do so expeditiously within a period of six months from the date of receipt of the judgment.
JUDGMENT :
S.M. SUBRAMANIAM, J.
Prayer: Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of CPC, to set aside the judgment and decree dated 12.06.2017 in A.S. No. 25 of 2012 on the file of the District and Sessions Court, Thiruvannamalai reversing the judgment and decree dated 27.06.2012 in O.S. No. 211 of 1990 on the file of the Additional Sub Court, Tiruvannamalai.
1. The judgment and decree dated 12.06.2017 passed in A.S. No. 25 of 2012 is under challenge in the present Civil Miscellaneous Appeal.
2. The plaintiff is the appellant in the present appeal. The suit was instituted for specific performance and it was decreed in favour of the appellant. The defendants filed an appeal suit in A.S. No. 25 of 2012. The first Appellate Court remanded the matter back for re-trial mainly on the ground that the trial Court has not considered the documents as well as the evidence in the right perspective and therefore, the issues are to be reconsidered, if necessary by conducting re-examination.
3. The learned counsel for the appellant mainly contended that the reasons furnished for remanding of the matter is unacceptable in view of the fact that the remand is to be made only in the suits are to be decided in the preliminary issues and as far as the present case is concerned, the trial Court considered the issue and passed orders and the first Appellate Court ought not to have remanded the matter and ought to have decided the matter on merits.
4. The learned counsel appearing for the respondent vehemently opposed the matter by stating that the appeal will have to be dismissed on the ground that the first Appellate Court had given a categorical finding that the trial Court has committed an error in not ascertaining the documents or evidences in right perspective. The trial Court ought to have considered the documents filed by the respondents in the suit. Contrary, based on the erroneous footing, the suit was decreed in favour of the appellant and therefore, the first Appellate Court has rightly remanded the matter back for re-trial and there is no infirmity as such and accordingly, the appeal is liable to be dismissed.
5. Considering the arguments of the respective learned counsel appearing on behalf of the appellant as well as the respondents, this Court is of the considered opinion that Order 41 Rule 23 CPC require that remand can be made by Appellate Court only for the suit was decided as a preliminary issue. If the suit is decided on merits by appreciating the documents and evidences, the first Appellate Court is bound to adjudicate the matter on merits and made a finding based on the documents on merits. Contrary, remanding of the matte back to the trial Court would cause greater prejudice to the parties and further lengthen the duration of the litigation which would cause untold agony to the parties.
6. The first Appellate Court is empowered to receive additional documents and take evidence or witnesses if at all required for the purpose of deciding the issues on merits. This being the legal position, the first Appellate Court ought not to have remanded the matter back for retrial on certain unnecessary grounds. The reasons stated in the judgment of the first Appellate Court is that the trial Court has not considered the documents and evidences in right perspective and such a reason is unacceptable and therefore, the order of remand is perverse.
7. Remanding the matter back to the original Court may be an easy way out for the Appellate Courts, however, such a procedure in the absence of any sound principles cannot be appreciated by the High Courts. The Courts are expected to be cautious while remanding the matter. When the Courts are vested to the power to decide the matter on merits in all circumstances, such Courts are expected to exercise its power in order to provide complete justice to the parties who are all approaching the Court of law. Contrarily, remanding the matter back would lead to prolongation and would cause injustice
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