PERIYANAYAGASAMY Vs. JESUDOSS

JUDGEMENT

(1.) This appeal arises out of the order of remand dated 15.2.2008 passed by the learned Additional District Judge (Fast Track Court), Ariyalur, in A. S. No. 101 of 2003, whereby the judgment and decree dated 22.10.1997 passed by the learned District Munsif, Jayankondam, were set aside and the matter was remanded to the trial Court for fresh disposal. The appellant herein is the defendant and the respondents are the plaintiffs before the trial Court. The circumstances, which led the appellant/defendant to file the present appeal, are as follows:

(2.) Learned counsel appearing on behalf of the appellant/defendant would submit that the order of remand should not be made mechanically. In the instant case, there is no dispute with regard to the title of Chinnappan to the suit property. When there is no dispute with regard to the title of Chinnappan with regard to the suit property, there is no need for impleading Chinnappan and amending the prayer and the appellate Court itself can decide the suit on merits. In support of his contentions, the learned counsel has relied on the judgments in Somasundaram Chettiar v. Balasubramanian, 1998 2 MadLJ 562, Kannathal v. Arulmighu Kanniammal Karuppasamy Thirukoil, 2007 1 MadLJ 725 and Parimal v. Veena Alias Bharti, 2011 3 SCC 545

(3.) Per contra, the learned counsel for the 4th and 5th respondents submitted that it is the main defence of the appellant before the trial Court that the suit property belonged to Chinnappan, the 5th respondent and he purchased 0.33 cents situated on the northern side of the suit property from the same from Chinnappan, but Chinnappan was not impleaded as a party to the suit before the trial Court. But, before the lower appellate Court, the respondents have taken two applications, one to implead the Chinnappan as one of the parties to the suits and also to amend the plaint to add the prayer for declaration declaring the right of Chinnappan in the suit property. The said applications were allowed by the Court on 13.8.2004 and 22.7.1997 respectively. Since the declaration prayer is added, the nature of the suit has totally changed. Under such circumstances, the order of remand passed by the lower appellate Court to record the evidence of Chinnappan cannot be found fault with. The learned counsel further submitted that the appellant having failed to challenge the orders passed in I. A. Nos. 18 of 2004 and 35 of 1997, now cannot challenge the order of remand. In support of the said submissions, the learned counsel has relied on the decisions in Md. Najibuzzaman v. Sheo Shankar and Purushottam Reddy v. Pratap Steels Limited, 2002 2 MadLJ 99.