VINODH JAYACHANDRAN Vs. POORANI.C

JUDGEMENT

(1.) The Civil Miscellaneous Second Appeal is filed against the order of remand made in C.M.A.No.52 of 2018 dated 03.06.2019 on the file of the District Court, the Nilgiris, Udhagamandalam, reversing the Judgment and Decree dated 05.04.2018 in H.M.O.P.No.39 of 2017 on the file of the Subordinate Court, Coonoor.

(2.) The respondent/wife herein, originally filed H.M.O.P.No.37 of 2011 before the Subordinate Court, Udhagamandalam, seeking dissolution of marriage under Section 13(1) (ib) of the Hindu Marriage Act 1955, which came to be dismissed by a fair and decreetal order dated 26.08.2015. Subsequently, the respondent filed H.M.O.P.No.39 of 2017 before the Subordinate Court, Coonoor, which also came to be dismissed by a fair and decreetal order dated 05.04.2018. As against the dismissal order dated 05.04.2018, C.M.A.No.52 of 2018 was filed by the respondent herein before the District Court, the Nilgiris, Udhagamandalam, wherein which, the District Judge upon hearing the arguments and perusing the records had remanded the case back to the Trial Court to incorporate the portion of the actual main counter and thereafter, to adjudicate the subject matter in accordance with law and the parties were permitted to adduce additional oral and documentary evidence, if necessary. As against the order dated 03.06.2019, the present Civil Miscellaneous Second Appeal has been filed on the following substantial questions of law :-

(3.) The learned counsel for the appellant has contended that the order of the District Judge is contrary to Order 41 Rule 23 and 24 of CPC which clearly speaks about an order of remand under what circumstances, it can be made. Further, the learned counsel for the appellant has contended that the counter affidavit filed by them in H.M.O.P.No.39 of 2017 was not taken into consideration by the Trial Judge and blindly it was reproduced in the order without any discussion, which made the District Judge to remand the matter back to the Trial Court. The very counter was available with the District Judge who ought to have examined the same and could have passed an order on merits, instead of remanding the case before the Trial Court for fresh adjudication of evidence both oral and documentary. Moreover, the learned counsel for the appellant has contended that the cause of action is one and the same for both the H.M.O.P.No.37 of 2011 and H.M.O.P.No.39 of 2017 and the relief available to the respondent earlier omitted cannot be claimed in the subsequent original petition.