IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.02.2011 CORAM THE HONOURABLE MR. JUSTICE B.RAJENDRAN C.M.A. No. 1869 of 2006 and M.P. No. 1 of 2006 S. Jeyachandran .. Appellant Versus 1. A. Venkatesan 2. V. Thavamani . Respondents Appeal filed under Order XLIII Rule i (u) of CPC against the Order dated 06.02.2006 passed in A.S. No. 91 of 2005 on the file of the Principal Subordinate Judge, Salem by setting aside the decree and judgment dated 19.01.2005 passed in O.S. No. 825 of 2004 on the file of the Principal District Munsif Court, Salem. For Appellant : Ms. Elizabeth Rani For Respondents : Mr. K. Vasuvenkat JUDGMENT
The Plaintiff in O.S. No. 825 of 2004 on the file of the Principal District Munsif Court, Salem is the appellant in this appeal. The present appeal is filed as against the order of remand passed by the first appellate Court in A.S. No. 91 of 2005 dated 06.02.2006.
2. The facts relating to the case is that the plaintiff had filed the suit for recovery of amount on the basis of promisory note executed by the defendants/respondents herein on 10.10.1999 for Rs.30,000/- in his favour. Though a pre-suit notice dated 29.07.2001 was issued by the plaintiff before institution of the suit and called upon the defendants to pay the amount, no reply was received by him, hence, he filed the suit for recovery of money.
3. Before the trial court, the defendants/respondents herein have filed a written statement in which they have categorically denied the execution of the suit promisory note. They have also stated that normally, they will sign in English, but the suit promisory note has been signed in Tamil and therefore the suit promisory note is not genuine.
4. On trial, the plaintiff examined himself as PW1 and the attestors of the suit promisory note were examined as Pws 2 and 3. The defendants have examined themselves as Dws 1 and 2. Ultimately, the trial court decreed the suit as prayed for by the plaintiff. Aggrieved by the same, the defendants have filed an appeal in A.S. No. 91 of 2005 before the first appellate Court. Pending appeal, the defendants have filed I.A. No. 18 of 2006 under Order 41 Rule 27 of CPC to permit them to send the suit promisory note along with the admitted signature of the defendants to an handwriting expert. The Plaintiff opposed the said application, however, the first appellate Court had remanded the matter back to the trial court, setting aside the decree and judgment passed by the trial court, for fresh consideration.
5. The learned counsel for the plaintiff/appellant mainly contended that though a defence was taken by defendants that they normally sign only in English, but the signatures in the suit promisory note is in Tamil, they have not taken any further steps to get the handwriting in the suit promisory notes compared by an expert. Just because an application was filed by the defendants to send their signatures in the suit promisory note for comparision to an hand writing expert, it is not open to the first appellate Court to mechanically remand the matter to the trial court, especially by setting aside the well considered decree and judgment of the trial court, without giving any finding as to how the decree and judgment passed by the trial court is perverse and arbitrary. The first appellate Court got ample powers to decide the matter on merits and in accordance with Order 41 Rule 23-A and therefore, the order of the first appellate Court is per se arbitrary and illegal. In this connection, the learned counsel for the appellant relied on the decision of the Honourable Supreme Court reported in (H.P. Vedavyasachar vs. Sivashankara and another) CDJ 2009 SC 1594 wherein the order passed by the High Court, directing the trial court to dispose of the suit after taking additional evidence, was modified and direction was issued to the first appellate Court to dispose of the suit on merits as follows:-
"For the aforementioned purpose, in our considered opinion, the High Court could not have directed the trial court to dispose of the suit after taking evidence. Such an order of remand could be only in terms of Order XLI Rule 23, Order XLI Rule 23A or Order XLI Rule 25 of the Code. None of the said provisions have any application in the instant case.
.....None of the aforementioned provisions were available to the High Court. We therefore, in modification of the order passed by the High Court direct as under:-
(i) The learned trial court upon recording the evidence as directed by the High Court shall transmit the records to the First Appellate Court with a copy of its report annexed hereto.
(ii) Such an exercise by the learned trial court must be completed within a period of four weeks from the date of communication of this order
(iii) The first appellate Court must dispose of the first appeal on receipt of the said order as also the evidence as adduced as expeditiously as possible and not later than 8 weeks from the date of receipt of the said report."
6. The learned counsel for the appellant also relied on the decision of this Court reported in (Thangavelu vs. Sampoornam and others) CDJ 2010 MHC 2672 wherein it was held in para-8 as follows:-
"8. On a careful scrutiny of the judgment passed by the lower appellate Court, I find that it remanded the matter for the purpose of marking the documents filed along with I.A. No. 8 of 2009 by examining the witnesses and also affording an opportunity to the parties to adduce additional evidence. In my considered opinion, for the purpose of marking the documents through witnesses, remand is not necessary. It is a well settled principle, that an appeal is a continuation of the original proceedings. Under such circumstances, the lower appellate Court itself can record the evidence by permitting the first respondent herein to mark the documents and also by affording opportunity to the appellant herein to cross examine the witnesses...."
7. The learned counsel for the defendants/respondents would contend that the defendants have taken a defence disputing their signature in the suit promisory note even in their written statement. The first appellate Court, on filing of an application by the defendants/respondents thought it fit to remand the matter back to the trial court for fresh consideration and that therefore the order of remand passed by the first appellate Court is sustainable.
8. Heard both sides. The short point for consideration in this appeal is whether the order of remand passed by the first appellate court, setting aside the decree and judgment passed by the trial court, without giving any findings as to the sustainability of the decree and judgment of the trial court, is in accordance with law or not.
9. At the outset, it has to be pointed out that the defendants have contested the suit filed before the trial court by filing their written statement. In the written statement, they have clearly stated that they used to sign only in English, but the signatures in the suit promisory note were in Tamil and that therefore they denied the execution of the suit promisory note. Though the defendants/ respondents herein examined themselves as Dws 1 and 2 in the suit, at that point of time, they have not chosen to take any steps to get the signatures in the promisory note compared by a hand writing expert. In this connection, it has to be pointed out that the Courts can by itself compare the signature and there is nothing wrong in the Court comparing the disputed signature. Therefore, in the absence of any application filed by the defendants to get the disputed signatures compared by an expert, the trial court itself had taken the task of comparing the signature and concluded that the suit promisory note is genuine and the signatures found therein are the signature of the defendants. Ultimately, the trial court decreed the suit. Therefore, a finding was given by the trial court regarding the execution of the suit promisory note. On appeal by the defendants before the first appellate court on 09.01.2005, they have not chosen to file any application. However, when the appeal was posted for argument, at that time, the defendants have filed I.A. No. 18 of 2006 before the first appellate Court praying to send the suit promisory note for comparision of the signatures of the defendants by an expert. The first appellate Court, considering that the defendants have already taken such a stand in the written statement filed before the trial court, allowed the appeal, set aside the decree and judgment passed by the trial court and remanded the matter back to the trial court for fresh consideration without rendering any finding as to how the decree and judgment passed by the trial court is perverse. The first appellate court itself has got ample powers to take evidence or to send the disputed signatures for comparision by a hand writing expert, but the first appellate court, without doing so, had remanded the matter back to the trial court for fresh consideration.
10. In identical circumstances, in the judgment dated 02.09.2010 in C.M.A. No. 182 of 2007, I held that the order of remand passed by the first appellate court is unsustainable in law inasmuch as the first appellate court has not given any finding as to how the decree and judgment passed by the trial court was perverse, by referring to the decision of the Division Bench of this Court as well as the decision of the Honourable Supreme Court . I also held that the first appellate court should not, as a matter of routine, remand the matter for decision of the trial court and such an exercise can be undertaken by the first appellate court itself. In the judgment dated 02.09.2010, in para No.11 to 20, it was held by me as follows:-
11. In this connection, I am fortified by the decision of the Division Bench of this Court reported in (S. Shanmugam vs. S. Sundaram and others) (2005) 2 MLJ 552, it was held in para-12 as follows:-
"12. On a perusal of the judgment of the lower appellate Court, it is revealed that on the basis of both oral and documentary evidence available on record, the lower appellate Court came to the conclusion that the third defendant is also entitled to a share in 'A' schedule property and in the sketch of the Commissioner also when it is made clear that as to how the 'A' schedule property could be partitioned and especially when the provisions of O.41, Rules 23 to 29 of CPC are not a bar to take further evidence or to appoint a commissioner, if so necessary, and to try the appeal, as rightly pointed out by the learned counsel for the appellate, we are of the view that there is no necessity to remand the matter back to the trial court and that the lower appellate Court itself can try the matter after taking further evidence as to the point to be decided and it can dispose of the appeal on merits and in accordance with law.
12. It is also relevant to look into the decision of the Division Bench of this Court reported in (V. Munusamy (deceased) and others vs. M. Suguna) 2005 (1) CTC 107 wherein this Honourable Court held as follows:-
"7. Based on the averment in the affidavit filed in support of I.A. No. 7745 of 1987, filed under Section 4 (1) of the Act, the trial court, after satisfying itself, gave a finding that the petitioner therein/appellant herein is entitled to purchase the suit property on such finding satisfies one of the conditions prescribed under Section 4 (1) of the Act. No doubt, the trial court has not arrived the value of the share purchased by the transferee i.e., plaintiff. However, as rightly pointed out by the learned senior counsel for the appellant, on this ground, the lower appellate court set aside the order of the trial Court, including the finding of the entitlement of the appellant to purchase undivided share alienated by the family member to stranger alienee. As rightly argued, the principles underlying the exercise of the power of remand by the appellate Court has not been properly applied or exercised by the lower appellate Court. Courts have held that only in exceptional cases where the judgment of the trial Court is wholly unintelligible or incomprehensible, the appellate Court can remand the matter for fresh disposal. Order 41, Rule 23 give ample power to the lower appellate Court to decide all issues, including appointment of a Commission for local inspection, secure finding from the trial Court. Even if certain mistakes crept in in the order of the trial court, the same can be rectified by the appellate Court itself, unless there are very compelling circumstances to make an order of remand. An order of remand should not be taken to be matter of course and the power of remand should be sparingly exercised. There should be always endeavour to dispose of the case by the appellate Court itself, when the commissions and omissions made by the first Court could be corrected by the appellate Court. In the case on hand, even if there is omission by the trial court regarding determination of the value of the share purchased by the plaintiff, in the light of the above discussion coupled with the mandate provided under Order 41 Rules 23 and 27, the appellate Court itself can ascertain the value either by appointment of a Commissioner or by getting a report from the trial Court. As said earlier, Section 4 91) of the Act gives option to any member of the family who is a co-sharer in respect of a dwelling house, a portion whereof has been transferred to a person who is not a member of such family, to purchase the share of such transferee if a suit for partition is filed by that transferee. On such option being exercised, the valuation of such share has to be determined. The crucial date for the purpose of fixing the valuation of the share of such transferee is the date when option to purchase in accordance with Section 4 of the Act is exercised by the defendant co-sharer.
13. In both the decisions of the Division Bench mentioned above, presided by Hon'ble Justice P. Sathasivam, as he then was, it was categorically held that the First Appellate Court has got even right to take further evidence, or appoint an advocate commissinoer, if so necessary and there is no necessity for remanding the matter back to the trial court as the lower Appellate Court itself can try the matter and dispose of the appeal on merits and in accordance with law.
14. In the decision reported in (Municipal Corporation, Hyderabad vs. Sunder Singh) (2008) 8 SCC 485 it was held by the Honourable Supreme Court that an order of remand should not be passed by the First Appellate Court as a matter of course. In fact, the Court should be slow in exercising the discretionary powers conferred under Rule 23. Further, before passing an order of remand, the first Appellate Court has to record reasons that re-trial was necessary and also give finding that the decree and judgment passed by the trial Court is liable to be reversed and only then, an order of remand should be passed. In Para Nos. 17, 18, 32, 33 and 34, it was held as follows:-
17. Order 41 Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court.
18. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order 41 Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.
32. A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order 41 Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order 41 Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence.
33. Order 41 Rule 23-A of the Code of Civil Procedure is also not attracted. The High Court had not arrived at a finding that a retrial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order 41 Rule 23 of the Code.
34. An order of remand cannot be passed on ipse dixit of the court. The provisions of Order 2 Rule 2 of the Code of Civil Procedure as also Section 11 thereof could be invoked, provided of course the conditions precedent therefor were satisfied. We may not have to deal with the legal position obtaining in this behalf as the question has recently been dealt with by this Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas."
15. In (Bhuvaneswari vs. Saraswathi Ammal) (2005) 3 MLJ 626, the Division Bench of this Court in para 3, held as follows:-
"3. We went through the judgment of the lower appellate Court. As already noted, enough oral and documentary evidence had been let in on the side of the plaintiff as well as on the side of the defendant. An order of remand cannot be for the mere purpose of remanding a proceeding to the lower Court. It is governed by the provisions of the Code of Procedure, commencing from Order 41 Rule 22 onwards. The appellate Judge's view that in order to enable the parties to have the suit properties identified, an Advocate Commissioner had to be appointed and for that purpose the suit must be remanded to the trial court, in our considered opinion, is not warranted on the facts of the case. If it is possible for the appellate Court to evaluate the evidence made available on record and come to its own conclusion one way or the other, then it is open to the lower appellate Court to come to the aid of the parties for filling up a lacuna which is found wanting in the recoreds.
16. In this connection, I am also fortified by the decision rendered by the Honourable Supreme Court reported in (P. Purushottam Reddy and another vs. Pratap Steels Ltd) (2002) 2 scc 686 wherein in para-10 and 11, it was stated thus:-
"10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23-A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before the 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23-A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these Rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati (AIR at p. 399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand dehors Rules 23 and 23-A. To wit, the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.
11. In the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary. Neither Rule 23 nor Rule 23-A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule 25. So far as the objection as to maintainability of the suit for failure of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix A CPC is concerned, the High Court has itself found that there was no specific plea taken in the written statement. The question of framing an issue did not, therefore, arise. However, the plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to clause (c) of Section 16 of the Specific Relief Act, 1963 is concerned, the pleadings are there as they were and the question of improving upon the pleadings does not arise inasmuch as neither any of the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial court. Nevertheless, the parties and the trial court were very much alive to the issue whether Section 16(c) of the Specific Relief Act was complied with or not and the contentions advanced by the parties in this regard were also adjudicated upon. The High Court was to examine whether such finding of the trial court was sustainable or not in law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material inasmuch as the High Court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration and decision."
17. In (M/s. Sekaran Real Estates, a Partnership firm, by Managing Partner K. Chandrasekaran vs. Punjab National Bank, Mylapore Branch, Mylapore, Madras-4, by its Manager) 2000 (I) CTC 613 a learned single Judge in para No.4, held as follows:-
"It is clear from the above decisions as well as the provisions contained in Order 41, Rules 23 to 29, C.P.C. that duty is cast on the appellate Court to find that the decree of the trial court should be set aside. Even the fact that there are some defects or infirmities in the reasoning of the trial court is not a ground for the appellate court to remand the same to the trial court. The appellate Court should come to the clear conclusion that the findings of the trial court cannot be supported and must be set aside. Only in exceptional cases where the judgment of the trial court is wholly unintelligible or incomprehensible that the apprllate Court can remand the suit for fresh trial. A reading of the judgment of the appellate Court would show that it has not at all considered the judgment of the trial court nor pointed out infirmity or defect in the conclusion. Further, the learned appellate Judge has not borne in mind any of the principles mentioned above. A careful scrutiny of the judgment also shows that he never felt that the judgment of the trial court must be set aside or reversed. After allowing the amendment petition, the appellate court has simply directed the trial court to try the matter once again, after affording further opportunity to the parties, the directions contained in the order of remand are vague and too general in character. The fact that the lower appellate Court has not considered the reasoning or merits of the decree of the trial court has not been disputed by the learned counsel for the respondent-Bank.
18. In (Kannathal and four others vs. Arulmighu Kanniammal Karuppasamy Thirukoil, Pothanur Chettipalayam, Coimbatore, rep. by its Executive Officer and another) 2007 (2) CTC 49, a learned single Judge of this Honourable Court held in para No. 15 and 17 as follows:-
"15. It is also settled law that if the issues arising in the suit could be decided on the evidence available on record, the lower Appellate Court itself should decide the case on merits without unnecessarily ordering remand. A perusal of the pleadings in the case shows that all the necessary pleadings are available on record. Even if the Lower Appellate Court was of the opinion that it was necessary to give an opportunity to the plaintiff to amend the pleadings, that opportunity could have been given in the First Appellate Court itself and for that purpose, the remand is not needed.
17. In the light of the law laid down by the Apex Court in the decisions reported in Ishwardas vs. State of Madhya Pradesh and others, AIR 1979 SC 55 and P. Purusottam Reddy and another vs. Pratap Steels Limited, 2002 (2) ctc 686, this Court is of the considered view that the Lower Appellate Court has committed an error of law in remanding the matter only for the purpose of affording an opportunity to the plaintiff to amend the pleadings and to adduce additional evidence. As laid down by the Apex Court it is not proper for the Appellate Court to remand the case to enable the parties to make good their lapse.
19. In (Sujatha vs. Vijay Anand and another) (2007) 4 MLJ 447, a learned single Judge of this Court in Para No.15 and 16, held as follows:-
"15. In the case on hand, the learned District Judge has not reversed or set aside the finding of the trial court. It is only to give opportunity to the plaintiffs to prove the Will dated 12.08.1982, the lower Appellate Court has remanded that suit to the trial court. The procedure adopted by the learned District Judge is not correct. The District Judge himself got jurisdiction and powers under Order 41 and Section 151 of C.P.C.
16. I am of the opinion that the order of remand of the suit cannot be sustained and therefore, the judgment and decree of the learned District Judge remanding the suit to the trial court are set aside. The learned District Judge is directed to take the first appeal and I.A. No. 53 of 2001 on its file and give opportunity to both parties with regard to the proof of the said document dated 12.08.1982 and dispose of the first appeal on merits.
20. In the aforesaid decisions, it was categorically held that order of remand should not be passed as a matter of course and without giving a finding as to how the decree and judgment of the trial court is perverse, illegal, especially, after amendment to Order 41 Rule 23A of CPC. In the case on hand, the first appellate Court remanded the matter back to the trial court for fresh consideration summarily on the only ground that the plaintiff and defendants 1 and 2 have filed interim applications for reception of additional documents and the said documents have to be marked before the. No finding has been given by the first appellate Court as to how the decree and judgment passed by the trial court is vitiated warranting it to pass an order of remand. Under those circumstances, the Judgment and Decree passed by the first appellate Court is set aside. The matter is remanded to the first appellate Court for disposing of the first appeal on merits and in accordance with law after giving sufficient opportunity to both sides.
11. In the light of the above decisions, the Order dated 06.02.2006 passed in A.S. No. 91 of 2005 on the file of the Principal Subordinate Judge, Salem is per se illegal and therefore, the appeal filed by the plaintiff/appellant is allowed, setting aside the order of remand passed by the first appellate court in A.S. No. 91 of 2005 dated 06.02.2006. No costs. The first appellate Court is directed to decide the appeal filed by the defendants/respondents herein in A.S. No. 91 of 2005 along with I.A. No. 18 of 2006 and dispose it of within a period of three months from the date of receipt of a copy of this judgment on merits and in accordance with law, after giving an opportunity to both sides. Consequently, connected miscellaneous petition is closed.
1. The Principal Subordinate Judge, Sub Court Salem
2. The Principal District Munsif Court District Munsif Court Salem