MADASAMY ASARI Vs. V SURESH

JUDGEMENT

(1.) This Civil Miscellaneous Appeal has been filed by the defendants in the suit. The respondent herein filed O.S.No.302 of 1999 on the file of the Principal District Munsif Court, Sankarankoil, seeking the relief of injunction. The said suit was dismissed by judgment and decree dated 18.03.2003.

(2.) Aggrieved by the same, the unsuccessful plaintiff filed A.S.No.33 of 2003 before the Sub Court, Sankarankovil. During the pendency of first appeal, the plaintiff/respondent herein filed I.A.No.109 of 2003, seeking to amend the prayer in the suit. The plaintiff wanted to include additional reliefs and to make appropriate amendments in the plaint. The defendants opposed the said prayer of the plaintiff by contending that the prayer for amendment was patently hit by limitation and therefore it should not be allowed. The Lower Appellate Court instead of deciding the issue straightaway, remitted the matter to enable the plaintiff to amend the plaint, which was to come into effect from 18.03.2003. The judgment and decree passed by the Trial Court was set aside and the matter was remanded to enable the plaintiff to amend the plaint and to give opportunity to both the parties. Aggrieved by the said order, dated 01.09.2003 made in A.S.No.33 of 2003, this Civil Miscellaneous Appeal has been filed.

(3.) The learned counsel appearing for the appellant herein relied on the decision of this Court Palanisamy @ Uthayarpalayathan Vs. Apparsamy, 2002 4 LW 276 and Kannathal and others vs Arulmighu Kanniammal Karuppasamy Thirukoil, Chettipalayam, Coimbatore, 2007 1 MadLJ 725. In these decisions, the principles governing the exercise of jurisdiction under Order 41, Rule 23 to 29 had been laid down. Remand cannot be made as a matter of course. The First Appellate Court must arrive at a specific finding that the judgment of the trial Court was erroneous and that it is liable to be set aside. When all materials are available before the First Appellate Court, it must decide the matter one way or the other. If at all the first appellate court wanted to permit amendment of pleadings, the opportunity can be given in the first appeal itself and for that purpose, the question of remand would not arise.