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2022 Supreme(Mad) 284
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S. ANANTHI, J.
Sekar & Others - Appellants
Versus
Ganesan & Another - Respondents
C.M.A.(MD). Nos. 1290 & 1291 of 2012 & M.P.(MD) No. 1 of 2012
Decided On : 11-02-2022
For the Appellants : G. Karnan.
For the Respondents: P. Vadivel.
Headnote:
Code of Civil Procedure,1908 - Order 43 Rule 1(u) - Decreetal order - Decreed suit - Order of remand - Civil Miscellaneous Appeals have been filed to set aside order of remand passed by Additional Subordinate Judge by setting aside Judgment and Decreetal order – Held, After remand by its Judgment and decree City Civil Court at decreed suit in O.S - It turned down plea of limitation by stating that since in original written statement defendant had admitted title of plaintiff and only in written statement was title denied for first time after amendment of plaint was moved relief of declaration claimed by plaintiff would be within the period of limitation - In impugned judgment High Court reversed said judgment on limitation stating that the original written statement filed on had clearly stated that plaintiff did not have necessary title to suit schedule property and as the amendment of plaint was moved long after three years from it was clear that it was time barred. O.S was thus dismissed on limitation alone - High Court also turned down the plea with reference - Civil Miscellaneous Appeals are dismissed - miscellaneous petition is closed.
JUDGMENT :
(Prayer: Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of Code of Civil Procedure, to set aside the order of remand passed by the learned Additional Subordinate Judge, Thanjavur, in A.S.No.50 of 2011, dated 28.03.2012 by setting aside the Judgment and Decreetal order made in O.S.No.114 of 2008, dated 21.03.2011 on the file of the learned District Munsif Court, Thanjavur, and allow the appeal.)
Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of Code of Civil Procedure, to set aside the order of remand passed by the learned Additional Subordinate Judge, Thanjavur, in A.S.No.51 of 2011, dated 28.03.2012 by setting aside the Judgment and Decreetal order made in O.S.No.274 of 2008, dated 21.03.2011 on the file of the learned District Munsif Court, Thanjavur, and allow the appeal.)
1. These Civil Miscellaneous Appeals have been filed to set aside the order of remand passed by the learned Additional Subordinate Judge, Thanjavur, in A.S.No.50 of 2011, dated 28.03.2012 by setting aside the Judgment and Decreetal order in O.S.Nos.114 & 274 of 2008, dated 21.03.2011 on the file of the learned District Munsif Court, Thanjavur.
2. The parties are referred to as per the rank mentioned before the Court below.
3. Originally, the suit in O.S.No.114 of 2008 was filed to declare that the settlement deed executed by the 1st and 2nd defendants in favour of the 2nd defendant, dated 29.06.2007 as Null and Void.
4. The 2nd defendant in O.S.No.114 of 2008 has filed a suit in O.S.No.274 of 2008 for permanent injunction.
5. The learned District Munsif, Thanjavur, has decreed the suit in O.S.No.114 of 2008 and dismissed the suit in O.S.No.274 of 2008. The 2nd defendant in O.S.No.114 of 2008 has preferred an appeal in A.S.No.50 of 2011 against the Judgment and Decree in O.S.No.114 of 2008 and A.S.No.51 of 2011, against the Judgment and decree in O.S.No.274 of 2008.
6. The learned Appellate Court has set aside the Judgment and Decree in both the cases and remanded the suits in O.S.Nos.114 & 274 of 2008 to the trial Court with directions. The learned trial Court has directed the parties to amend the prayer and declaration of title since there is cloud on the title. Aggrieved over the same, the Civil Miscellaneous Appeals have been filed.
7. Heard on either side. Perused the material documents available on record. 8. The trial Court has decided the matter without deciding the title to the suit property. Both the parties have claimed title over the property. But, neither of them have filed suit for declaration. Without seeking declaration of title, the Court cannot decide the real issues.
9. Further, the learned District Munsif, Thanjavur, has also decreed the suit in O.S.No.114 of 2008 on the ground that the plaintiffs in O.S.No.114 of 2008 are Nattamai as per the documents produced by them. The Court below cannot decide that whether the property belonged to the temple and the 1st defendant has no right to execute the sale deed.
10. Therefore, the Appellate Court has rightly passed the remand order.
11. The learned counsel appearing for the appellants has relied upon the Judgment reported in (2010) 0 Supreme (Mad) 121, R. Shantha vs. Ramasamy Gounder and Others, in which this Court held as follows:
....
“7. Remanding the matter back to the original Court may be an easy way 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 on account of long delay in delivering the judgment. Speedy disposal of the cases are eminent as the people in general as citizen of our great nation are
