SRINIVASAGAM Vs. KUTTIAH

JUDGEMENT

(1.) This appeal is directed against the order of remand passed by the learned Subordinate Judge, Srivilliputtur. The facts which are necessary for the disposal of this appeal are briefly stated as follows : The appellant herein filed the suit, O. S. 354 of 1983, for the relief of permanent injunction restraining the defendants from interfering with his possession and enjoyment of the plaint schedule properties. The plaint schedule properties consist of two items, viz., Item A and Item B. Item A is a punja land in survey No. 667/4, measuring 1-15 acres in Villupanur village bearing patta No. 369. Item B is also a punja land in survey No.666/3 measuring 7 cents in the same village bearing the same patta number. It is the case of the plaintiff that he purchased the plaint schedule. Item A under registered sale deed dated 9-4-1968 and Item B under registered sale deed dated 23-8-1969. According to the plaintiff, there is no detailed channel running along the plaint schedule Items A and B, but the Tahsildar, Srivilliputtur, sent a notice under the Land Encroachment Act that the plaintiff encroached 0.88 cents by destroying the channel and annexing the same to his patta lands. It is further stated by the plaintiffs that the defendants proclaimed that there is a detailed odai along the plaint schedule properties and that the defendants are entitled to use it as a cart track. Hence, the plaintiff filed the suit for the relief of permanent injunction. 2-3. The said suit was resisted by the respondent-defendants and in the written statement filed they averred as follows. There is a detailed odai which runs through the plaint schedule properties, which starts from S.Nos. 665, 666, 667, 670 and 677 and other several survey numbers and which finally falls in Villupanur big tank in S.No. 704. Even in the Government register the S.No. 667/4 is shown as odai poromboke. The plaintiff destroyed the detailed odai and started cultivating the same after annexing it to his land. It is because of this the Tahsildar of Srivilliputtur sent a notice under the Land Encroachment Act. The detailed odai was used for running water and also for having the same as cart track to reach their lands. There is no other cart track to reach their lands except the suit detailed channel. It is also contended by the defendants that the suit is bad for non- joinder of necessary parties since the Government is not made a party to the suit. Hence the defendants prayed for the dismissal of the suit. 4. The learned Principal District Munsif of Srivilliputtur framed the following three issues - 1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?

(2.) Whether the suit is bad for non-joinder of necessary parties?

(3.) To what relief the plaintiff is entitled? An additional issue was framed as follows :- "Whether the defendants are entitled to an easementary right as contended by them? The plaintiff examined himself as P.W. 1 and also another witness P.W. 2 and he filed Exs. P. 1 to P. 10. On the side of the defendants three witnesses D.Ws. 1 to 3 were examined of which D.W. 1 is the first defendant and Ex. B 1 was filed. The learned District Munsif decreed the suit as prayed for. The aggrieved defendant took the matter on appeal and the appellate court by its judgment dated 16-4-1987, which is now challenged in this second appeal, remanded the matter to the trial court for the reasons stated in paragraph 8 of its judgment. 5. Learned counsel for the appellant would submit that the order of remand is unsustainable, since the Court below proceeded to dispose of the appeal only on the sole point whether the suit is a fit case for remand to the lower court. Moreover, the reasons given for ordering remand are that the defendants wanted to file certain documents as additional evidence, that the Government was not added as a party and that no Commissioner was appointed and to enable the defendants to prove the documents filed by them and the said reasons do not warrant to issue an order of remand. At the outset it is to be mentioned that the learned Subordinate Judge has not properly understood the scope of O. XLI, R.23, C.P.C. and also the pronouncements of this court on that point. First of all before ever ordering remand of the case, the appellate court ought to have discussed the finding of the trial Court and arrived at a conclusion that the said finding is liable to be set aside and then only the appellate Court could think of remitting the case back. Secondly an order of remand cannot be made just to fill up a lacuna by allowing the party to adduce evidence but the order of remand is possible only if the court feels that further evidence is necessary for the arrival at the just decision, if the appellate Court feels that additional evidence is necessary or additional evidence can be allowed to be adduced by one party, under O. XLI, R. 27, C.P.C. it could be adopted and the appellate court itself can dispose of the appeal on merits. But that cannot be a ground for remanding the suit to the trial court for fresh disposal. 6. I had occasion to consider a similar case which is reported in Kannu Naicker v. Kulaimani, (1987) 100 Mad LW 922, wherein I have considered various earlier decisions of this court. In Pattammal v. Yasotha Ammal, (1980) 93 Mad LW 574 it has been held that remand cannot be ordered to enable the parties to fill up lacuna in a case and that the discretion should not be exercised in an arbitrary manner but should be exercised by sound principles. It was held in Sowdammal v. Veerammal, (1970) 1 Mad LJ 205 : 82 Mad LW 625 that it is clear from the scheme of the rules that generally speaking only where it is not possible to apply O.41, Rr.24 to 27 C.P.C. a remand should be resorted to under O.41, R.23, C.P.C. It should be noted further that before remanding the case, O.41, R.23 itself contemplates that the appellate court should reverse or set aside the decree. Reading the rules together this provision will not apply to a case where the trial court has considered the entire evidence but in the opinion of the appellate Court a different view ought to be taken of the evidence and the appellate court is in a position to come to a finding on the evidence on record. In such a case, it is the duty of the appellate court to consider the matter as it stands and give its own finding in reversal of the finding of the trial Court. But that would not justify a remand. The provisions of O.41, R.27, C.P.C. should be strictly complied with by the appellate court. In Rajappan v. Natesan, 86 Mad LW 426, it has been held that the appellate Court has to keep the appeal on file and dispose it of after taking the additional evidence either itself or directing the trial court to take the additional evidence under O.41, R.23. C.P.C. Applying the ratio laid down in the above decisions, in Rustam v. Madam Behera, AIR 1986 Orissa 207 it was held that remanding a suit by the appellate court without expressing any opinion on evidence adduced is not proper and it should have first assessed the evidence, dealt with the finding and then given reasons for not being able to give finding. In Karna v. Prakash Chand, AIR 1985 Punj and Har 341, it was held that if from the pleadings of the parties a material issue arises, which is not found in the trial court and the appellate court feels that the said issue was necessary, then the proper course to be adopted would be to resort to O.41. R.25. C.P.C. and not to remand the case under R.23-A of the Code, after setting aside the judgment and decree of the trial Court. In the decision reported in Municipal Corporation of Greater Bombay v. Pancham, AIR 1965 SC 1008 it has been held that the question of permission to lead additional evidence can be considered only after the entire merits of the case are considered by the appellate court and then if it is found that a case for permission to lead additional evidence has been made out on one or the other ground, then the permission can be granted. In Setu Madhav Rao v. Food Corporation of India, AIR 1985 Guj 27 it was observed as follows - "The trial court after recording the evidence and after coming to the conclusion that the plaintiff had established his right of easement over the road, decreed the suit and granted permanent injunction. Before the appeal filed by the defendant was heard, he gave an application for amendment of the written statement to the effect that the original owner of the suit land should be impleaded as a party co-defendant, otherwise the suit would be bad for non joinder of parties. The decree was set aside by the appellate court and the matter was remanded back to the trial court to consider the amendment application and to raise and decide the issue and to decide the suit. Held : that the appellate Court committed serious error of law and procedure in remanding the suit under R.23-A without deciding the amendment application on merits and without considering merits of the case. The decree passed on merits was set aside and the whole case was remanded in violation of provisions of R.23-A. The amendment which was deemed to have been waived by the defendant under O.1, R.13, cannot be allowed at the appellate stage." 7. In the present case, I find the lower appellate court has not at all discussed the merits of the case before ever thinking of ordering remand. Further, the reasons given by the lower appellate Court in ordering remand are all unsustainable and as such the order is liable to be set aside. It is needless to go into the other aspects of the merits of the case in view of the settled legal position. For all those reasons, the appeal is allowed and the case is remitted back to the lower appellate Court which will dispose of the appeal A.526 of 1986 positively within one month from the date of the receipt of the records from this court on merits and in accordance with law after hearing both parties. In view of the fact that I.A. 217 of 1986 has been admitted by the lower appellate Court, it is directed to receive the additional documents subject to proof. No costs. Appeal allowed.