Chinnan Ambalam vs Ramiah Maniam and others

Venkataraman, J.—A.A.O. Nos. 369 of 1964:-- This appeal arises out of O.S. No. 17 of 1963 on the file of the District Munsif, Madurai

Taluk. The suit was dismissed by the learned District Munsif, but, on appeal by the plaintiffs, the learned Subordinate Judge set aside the decree of

the trial Court and remanded the suit to the lower Court for fresh disposal in the light of the directions in the judgment of the appellate Court. This

appeal has been filed under O. 43, R. 1(u), C.P.C., against the said order of remand by the defendant. The suit was filed for recovery of Rs. 300

as damages said to be the value of tamarind fruits carried away by the defendant from the tamarind tree alleged to be situate in S. No. 764/3.

Plaintiffs 2 and 3 claimed to be the owners of S. 764/3 and the said tamarind tree. They had leased the tree to the first plaintiff in 1959 for five

years. It is alleged that the defendant carried away the tamarind fruits on 21st February 1961. A criminal case was launched, but the defendant

was acquitted. Still the plaintiff: were entitled to recover damages in the civil court and a decree was prayed for in favour of the first plaintiff.

The defences put up were these: (1) the plaintiff had not title to S. No. 764/3 and, in particular, he has no title to the tree; (2) the tree was not

situate in S. No. 764/3, but was situate in S. No. 769; there was no tree at all in S. No. 764/3. S. No. 769 was poramboke land and the

defendant had obtained a tree, patta for the trees in S. No. 769 from the Government; (3) the tamarind tree yields only once in three years and

there was no yield in 1961; (4) the defendant did not carry away the tarns rind fruits of the tree.

The learned District Munsif, who tried the suit, pointed out that the question of title was only incidental but still it had to be decides. He decided

it against the plaintiffs in respect of the land, S. 764/3 and the trees in particular. He also held that the plaintiffs had failed to show that the tree was

situate in S. No. 764/3. He further held that there was no yield in 1961 and that it had not been proved by satisfactory evidence that the defendant

had removed the yield. On these findings he dismissed the suit.

In appeal the learned Subordinate Judge posed as the sole question for determination, whether the tamarind tree in dispute is situate in S. 764/3

or in S. No. 769 and whether the defendant plucked and carried away the tamarind fruits. In discussing the point he observed that it was

unnecessary to decide the question of title to S. No. 764/3, and that all that was necessity to decide was the question formulated above. He

observed in paragraph 6 that even though the plaintiffs had made an endeavour to show that the disputed tree was in S. No. 764/3, they were not

able to establish conclusively that the disputed tree was in S. No. 764/3, and he developed the point by examining the documentary evidence and

observed,

So these documents do not show whether the tamarind tree is standing in the boundary line between S. No. 764/3 and 769"". In paragraph 7 he

observed:

We do not have any materials in this case to find out the exact place or point where this tree is standing and whether the tree in dispute is within S.

No. 769. The learned District Munsif himself as pointed out that the plaintiffs have failed in take out a commission for local inspection to show that

the tree stands in S. No. 764/3. The definite case of the defendant is that there was no tamarind trees in S. No. 764/1. So in my opinion a

commissioner has to be appointed to inspect the suit locality and draw a plan and locate the tree is dispute. In my opinion then only it would be

possible to give a satisfactory disposal about the dispute in this case. I am constrained to remand this suit to the lower court and the learned District

Munsif shall direct the plaintiffs to file a petition for appointment of a Commissioner and the Commissioner shall inspect the suit property and draw

a plan showing the location of S. No. 769, 764/3 and 71 and also locate the point or place and in which survey number the suit tamarind tree is

situate. The trial court will dispose of the suit after the report of the Commissioner after recording evidence as to enjoyment. The parties are at

liberty to let in further evidence in the trial Court. In view of my remanding the suit to the lower Court, I am not giving any finding on this point.

It is against the order of remand that the present appeal has been filed by the defendant.

A preliminary objection has been taken by Sri K.S. Ramabhadra Iyer, the learned Counsel for the plaintiffs that this appeal is incompetent

having regard to the provisions of O. 43, R. 1 (u), C.P.C., read with (sic) C.P.C., O. 43, R. 1(u) permits an appeal against an order under R. 23

of O. 41, remanding a case where an appeal would lie from the decree of the appellate Court. S. 102, C.P.C. states :

No second appeal shall lie in any suit of the nature cognizable by Court of Small Causes, when the amount or value of the subject matter of the

original suit does not exceed one thousand rupees.

The preliminary point of Sri Ramabhadra Iyer is that, though the suit was filed on the original side, it was suit of the nature cognizable by Courts

of Small Causes, but, since the value of the subject matter of the suit was only Rs. 300, S. 102 would bar a second appeal against the decree of

the appellate Court, if a decree had been passed by the appellate court and that, consequently, under O. 43, R. 1(u) an appeal does not lie.

This contention has, however, no substance. The allegations in the plaint arc to the effect that the defendant committed theft of the tamarind fruits

in the possession of the first plaintiff and that that was why the suit was laid on the original side. Paragraph 8-A of the plaint states:

The plaint it presented on the original side since the claim comes under Art. 35 of the Provincial Small Cause Courts Act.

The reference is to Art. 35 in the Second Schedule of the Provincial Small Cause Courts Act (IX of 1887). S. 15 of that Act says:

A Court of Small Causes shall not take cognisance of the suits specified in the second schedule as suits excepted from the cognisance of a Court of

Small Causes.

The Second Schedule specifies the suits excepted from the cognisance of a Court of Small Causes and Art. 35 (h)(ii), so far as it is relevant for

us, reads:

A suit for compensation for an act which is, or, save for the provisions of Ch. IV of the Indian Penal Code, would be an offence punishable under

Ch. XVII of the said Code.

The averments in the plaint made against the defendant charged him with an offence punishable under Ch. XVII of the Indian Penal Code (theft

misappropriation) and hence Art 35 (h)(ii) clearly applies and that was why the plaintiff''s rightly lard the suit on the original side. That being so, the

suit was not at all of the nature cognisable by a court of Small Causes. It is clear from the decision of the Full Bench in Soundaram Aiyar v. Sannia

Naicken 23 Mad. 547 F.B., that a suit which is excepted from the jurisdiction of a court of Small Causes under Art. 35 cannot be said to be a suit

of the nature cognisable by a court of Small Causes. In fact, that should be obvious. The Full Bench decision points out that though a suit may be

of the nature cognisable by a court of Small Causes, it may have been tried as an original suit, because in the particular place there is no Munsif

invested with jurisdiction under the Small Cause Courts Act, or it may be that he has been invested only with jurisdiction upto a particular amount,

say Rs. 300, but the claim of the small cause otherwise exceeds that value, say is of the value of Rs. 500. It is in such cases that Sec. 102 C.P.C.,

will bar a second appeal. In this particular case the suit itself was not of a nature cognisable by a court of Small Causes. Hence the preliminary

objection is overruled.

On the merits, the contention of Mr. A.V. Narayanaswami Iyer, the learned counsel for the appellant, is that the order of remand was totally

unjustified, having regard to terms of order 41, rule 23 as interpreted uniformly by the decisions of this court. Order 41 rule 23 says.--

Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal,

or where the appellate Court in reversing or setting aside the decree under appeal consider it necessary in the interests of justice to remand the

case, the appellate court may by order remand the case, and may further direct what issues shall be tried in the case so remanded and shall send a

copy of its judgment and order to the court from whose decree the appeal is preferred, with direction to re-admit the suit under its original number

in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the trial shall, subject to all just exceptions,

be evidence during the trial after remand.

It has been pointed out in a number of decisions of this court, for instance, in Ramakrishna v. Rangayya AIR (1954) Mad 783,

Thirumalaiswamy Mudali Vs. Periasami Mudali and Another, and Ahamed Rowther Vs. Bathumal Beevi and Another, that before the lower

appellate court can remand a suit, it should first find that it is necessary to reverse or set aside the decree in appeal. If the learned Subordinate

Judge had examined the judgment of the learned District Munsif from that point of view, he would have found that the learned District Munsif had

discussed the available evidence and found against the plaintiffs. The learned Subordinate Judge was not prepared to differ from the leaned District

Munsif''s finding on the materials available, but he thought that further evidence was necessary and that a Commission should be issued. New the

learned District Munsif had not prevented the plaintiffs from applying for a commission. In fact, even if the grounds of appeal to the learned

Subordinate Judge, the plaintiffs had not asked for the issue of a commission and, on the contrary had taken up the position, under ground No. 13,

that it was unnecessary to issue a commission and that even on the materials on record the learned District Munsif should have found in favour of

the plaintiffs. Even if the learned Subordinate Judge felt that, for enabling him to pronounce judgment, it was necessary to take further evidence by

issuing a Commission he should have acted under Or. 41 rule 27 and kept the appeal on his file, instead of remanding the suit to the trial court. But

so the argument of Sri A.V. Narayanaswami Iyer runs--the learned Subordinate Judge could not have invoked even Or. 41 rule 27, because if, on

the materials on record, the plaintiffs on whom the burden of proof lay, had not made out that the tree in question was situate in S. No. 764/3, the

learned Subordinate Judge should have confirmed the dismissal of the suit on that sole ground. The learned Counsel urges that the learned

Subordinate Judge himself thought that, on the materials on record, the plaintiffs had not made out that the tree was situate in S. No. 764/3 and that

consequently, the dismissal of the suit should have been confirmed on the short ground.

Now, it seems to be indisputable, that the order of the learned Subordinate Judge remanding the suit under O. 41, R. 23, is totally unjustified.

It is opposed to the terms of O. 41 R. 23, as interpreted by the decisions cited above. The learned Subordinate Judge does cot say that, on the

material on record, the learned District Munsif''s judgment had to be set aside. All that he says is that, in his opinion, a Commission should issue.

But the plaintiffs had never asked for a Commission and they should have known particularly in view of the previous stages of the litigation, that it

was incumbent them to prove affirmatively that the tree in question was situate in S. No. 764/3. Hence, there was no justification to aside the

decree of the learned District Munsif and no question of remand under O. 41, R. 23, could arise. If the learned Subordinate Judge felt that a

Commission was necessary, he could only have acted under O. 41, R. 27, but, in that case, he should have kept the appeal on his file and should

not have acted under O. 41, R. 23 Hence, it is clear that the order of remand must be set aside.

The more difficult question is, what is the final order I should pass now ? Sri Narayanaswami Aiyar interprets the earlier portions of paragraph

6 and 7 of the judgment of the leaned Subordinate Judge as giving an express finding that, on the materials on record, the plaintiffs had not made

out that the tree was situate in S. No. 764/3. On this interpretation Sri Narayanaswami Aiyar submits that the dismissal of the suit should have been

confirmed straightaway. As against this, Sri K.S. Ramabadra Iyer, learned Counsel for the plaintiffs-respondents, submits that the earlier portions

of paragraph 6 could only be construed as observations or as a tentative discussion and relies on the last sentence in paragraph 7 of the judgment

wherein the learned Subordinate Judge expressly say that in view of his remanding the suit to the lower Court he was not giving any finding on the

point formulated by him. To this Sri Narayanaswami Iyer replies that no value can be attached to the last sentence in paragraph 7 and he further

submits that that sentence was occasioned by the wrong approach of the learned Subordinate Judge to the point. According to Sri Narayanaswami

Iyer the proper construction of the judgment is that the learned Subordinate Judge first discussed the materials on record and came to the

conclusion that the plaintiffs had failed to make out that the tree in question was in S. No. 764/3, but thereafter the learned Subordinate Judge

misdirected himself in law and imagined that because the issued of a commission was justified he should not give any finding on that point.

There is, no doubt, some force in the submission of Sri A.V. Narayanaswami Iyer. But going through the order as a whole, I feel that the

plaintiffs could legitimately complain that all the evidence placed before the Court and discussed in detail by the learned District Munsif had not

been considered by the learned Subordinate Judge in paragraph 6 and 7. It is possible that because the learned Subordinate Judge felt that, in any

case, he was going to re-remand the matter for the issue of a commission, he did not discuss the matter so thoroughly as otherwise he would, and

should have done. From this point of view I feel that in the interests of justice the plaintiffs should have a further chance of their appeal before the

learned Subordinate Judge being decided afresh according to law. It may be added that in all the cases cited before me by Sri Narayanaswami

Iyer where this court set aside the order of remand passed by the lower appellate court, this court ultimately remanded the appeal to the lower

appellate court for fresh disposal. Sri Narayanaswami Iyer urges that he can produce other cases, where final was given by this court. So far as

this case is concerned, I have already indicated that in my opinion, the interest of justice require that the plaintiffs should have an opportunity of

fresh disposal of their appeal before the learned Subordinate Judge. Accordingly, the order of remand passed by the learned Subordinate Judge is

set aside and the learned Subordinate Judge is directed to re-hear the appeal (A.S. No. 64 of 1964) and dispose it of according to law.

Sri. A.V. Narayanaswami Iyer points out that the learned District Munsif considered the other defence also of the defendant and gave findings

and that it might be necessary for the learned Subordinate Judge to traverse them. Sri Ramabadra Iyer invites me to give a direction that in

disposing of the appeal afresh is word be open to the learned Subordinate Judge to issue a commission suo motu without recording any reason

therefore under Order 41 rule, 27, and in that connection, be relies on the decision of the Allahabad High Court in Rambihal Dal Lakhpatlal AIR

1937 All. 270. That case no doubt decides that Order 41 rule 27 does not in terms apply to a case where the lower appellate court issues a

commission. The reasoning of the decision is that a Commissioner normally files only a report has yet to come into existence and, therefore, cannot

amount to a production of evidence already on record and that it could not be a case of a witness being examined. With all respects to the learned

judge, I am not inclined to agree with the last portion of the judgment. It seems to me that, though, generally speaking, a Commissioner is not

examined and only his report is relied on as evidence, having record to the provisions of Order 26, still it amounts to production of new evidence

and in some cases the Commissioner himself may have to be examined as a witness. I therefore, thing that the provision should issue.

With these observation, the order of remand passed by the learned Subordinate Judge if set aside and A.S. 64 of 1964 is remanded for fresh

disposal by the learned Subordinate Judge. Having regard to the circumstances of the case, the respondents-plaintiffs should pay the appellant the

costs of the appeal in this court. The court fee paid on the memorandum of appeal will be refunded. The costs of the lower appellate court will

abide the result. C.M.P. 7121 of 1967:�This petition to current the C.M.A. into a C.R.P. is unnecessary and is dismissed. No costs.