Advocates:
['M/S R SUBRAMANIAN', '', 'M SUDHAKAR', 'M/S S JAGANATHAN', '', 'R MUTHUKRISHNAN', 'J KALIDAS']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 02.09.2010

CORAM

THE HONOURABLE MR.JUSTICE B. RAJENDRAN

C.M.A. No. 449 of 2007

D.P.Singaram

.. Appellant/Plaintiff

Versus

S. Churchill

.. Respondent/Defendent

Appeal filed under Section Order 41 Rule 1 (u) of CPC

against the order passed in A.S.No.17/2005, dated 30.06.2006, on

the file of the Subordinate Judge, Dharmapuri against the Decree

of the court of the District Munsif Dharmapuri, dated 30.11.2004

made in O.S.No.47/2004.

For appellant

:

Mr. R. Subramanian

For respondent

: Mr. S. Jaganathan

JUDGMENT

This Civil Miscellaneous Appeal arises against the order of

remand passed by the First Appellate Court in A.S. No. 17 of

2005 remanding the suit filed by the plaintiff/appellant herein

in O.S. No. 47 of 2004 to the trial court for fresh

consideration.

2. The suit was filed by the plaintiff/appellant for

recovery of money based on a promisory note. The main

contention and grievance of the Plaintiff/appellant is that the

First Appellate Court has remanded the matter in a routine

manner without even an application filed by the

defendant/respondent for sending the document viz., promissory

note for expert evidence. He would specifically contend that

earlier, in the lower Court, the Defendant/Respondent herein

filed an application to send for the document for the expert

evidence, which was dismissed as not pressed and thereafter, as

requested by both sides, the lower Court itself compared the

signature and came to the conclusion that the signature in the

suit promisory note and that of the admitted signature of the

defendant are one and the same. Ultimately, the trial court

decreed the suit as prayed for. Aggrieved against the decree

and judgment passed by the Court below, the Defendant/respondent

herein preferred the first appeal. But in the course of the

appeal arguments, it was argued that there is a variation in the

signatures found in the suit promisory note as well as the

admitted signature of the defendant. In that process the First

Appellate Court came to the conclusion that even though the

lower Court compared the signature and arrived at the conclusion

that it was the signature of the Defendant, the first Appellate

Court was not in a position to compare the signature as there is

https://hcservices.ecourts.gov.in/hcservices/

some difference, which can only be set at knot by seeking the

assistance of an expert. Therefore, suo motto, the first

Appellate Court remanded the matter to the trial court for

comparing the signature by an expert and letting in evidence in

this regard. In that process, the first Appellate Court has

also set aside the well considered decree and judgment passed by

the trial court, without assigning any reasons

3.

The learned counsel for the appellant would contend

that the First Appellate Court should not have remanded the

matter without assigning any reason to set aside the decree and

judgment passed by the trial court as per the amendment under

Section 23A of CPC. If at all the first Appellate Court wanted

the signature to be compared by an expert, it could have done it

at the appellate stage without remanding the matter to the trial

court for fresh consideration. In this context, the learned

counsel for the appellant relied on the decision of this Court

reported in V. Munisamy (deceased) and others Vs. M.Suguna, 2005

(1) CTC 107. In that Judgment, Justice P. Sathasivam (as he

then was) has categorically held that there is no bar for the

First Appellate Court to take further evidence or to appoint a

Commissioner if so necessary and to try the appeal. In view of

the aforesaid decision, there is no necessity for the First

Appellate Court to remand the matter back to the trial Court .

4.

The learned counsel for the defendant/respondent would

contend that the variation in