SOOSAIRAJ Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS appeal is against the judgment of the learned District judge, Pudukottai remanding the suit O. S. No. 760 of 1984 to the trial court for fresh disposal in the light of the directions given in the judgment.

(2.) THE plaintiff's case is as follows: THE plaintiff was the successful bidder of toddy shop no. 20, in Kottaikkadu village in Alangudi taluk for a period of one year for 1983-84. THE highest bid amount was Rs. 2100. Since it was less than the upset price fixed by the defendants, the auction was not confirmed. No licence was issued to the plaintiff on that account. No agreement was entered into. THEre was a failure of monsoon in the village and therefore the defendant is bound to refund Rs. 1,000 deposited by the plaintiff and also a sum of Rs. 1,050 paid by the plaintiff towards kist for 15 days. THE plaintiff sustained a loss of rs. 5,000 which he has given as advance to the persons who tap the toddy from the tree. While so, the plaintiff has received a notice under the Revenue recovery Act, on account of the non-payment of monthly kist. THE amount claimed is not correct. THE plaintiff is not responsible for the loss sustained by the defendant. When the amount due to the defendant is in dispute, initiation of revenue recovery proceedings is not proper. Hence the suit.

(3.) THE suit is for injunction, for restraining the defendant from taking any steps for realising the alleged loss sustained by the defendant under the revenue recovery proceedings. THE plaintiff has alleged in the plaint that he was not issued with any licence and the bid for auction of toddy shop No. 20 made by him was not confirmed. THE trial court has originally held that the licence was not issued to the plaintiff and the bid at the auction by the plaintiff was not confirmed by the defendant and therefore the defendant is not entitled to demand any kist from the plaintiff. Against the said judgment, the defendant preferred an appeal to the District Court, pudukottai. THE appeal was allowed and the matter was remanded. It was again dismissed. An appeal was preferred for a second time. THE learned District judge who heard the appeal has given weight to the contention of the appellant before there that the appellant was having documents which would show the confirmation of the sale in favour of the plaintiff and the licence being issued to the plaintiff. THE iearned District Judge, has observed that in the previous order of remand made in A. S. No. 67 of 1989, since the defendant was not given an opportunity to let in any fresh evidence neither oral nor documentary, the defendant was unable to exhibit the licence and the order of confirmation and therefore in the interests of justice, an opportunity is given to the defendant to exhibit these documents and for that purpose, the matter is remanded. I am of opinion that the learned District Judge has not looked into the provisions of O. 41, Rules 23 to 27 of the Code of Civil Procedure before passing the impugned order. THE expression' interests of justice' does not widen the power of the appellate court to remand the suit in the sense that irrespective of the fact whether it comes to the conclusion that the judgment and decree of the trial court are liable to be set aside or not if the appellate court is of the opinion that the' interests of justice' require that there should be a fresh trial, it can remand the suit for fresh disposal. Such a contention is not a valid one if we consider O. 41, Rule 23 of the Code of Civil Procedure which lays down that the appellate court should first come to the conclusion that the decision of the trial court is liable to be reversed. In this case by remanding the suit and by giving an opportunity to the defendant to let in further to evidence, the lower appellate court has only opened the gate to gate to enable the defendants to fill up the lacuna and it may even give room for fabrication of the documents. THErefore the order of remand cannot be sustained.