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Judgment
R.S. Ramanathan, J.—This civil miscellaneous second appeal is filed against the order of remand made in R.E.A. No. 14 of 1996 on the file
of the Subordinate Judge, Hosur.
The suit in O.S. No. 166 of 1979 was filed by the Appellant herein for delivery of possession of the property and the suit was decreed and in
execution of the decree,the decree-holder/Appellant filed E.P. No. 36 of 1993 and he found that Respondents 3 to 5 were obstructing the taking
of delivery and therefore, the Appellant filed E.A. No. 16 of1994 under Order XXI Rule 97 of the CPC to remove the obstruction and that was
allowed by the court below. Thereafter, Respondents 3 to 5 herein filedC.M.A. No. 14 of 1996 against the said order and that appeal was
allowed by the first appellate court and remanded the case to the court below and against the same, the present appeal is filed by the decree
holder.
The civil miscellaneous second appeal was admitted and notice of motion was ordered. In the grounds of appeal, the decree holder raised two
substantial questions of law and they are as follows:
a) When the lower appellate court didnot come to a conclusion that the decision of the trial court is erroneous on facts or on law and therefore
liable to be reversed,whether the lower appellate court is correct in remanding the petition to the trial court for fresh enquiry.
b) When Respondents 3 to 5 produced documents which have been marked asExs.R1 to R6 but failed to produce the alleged Will and thus
sufficient opportunity has been given to them by the Trial Court, whether the lower appellate court is correct in remitting the petition so as to give
them an opportunity to fill up the lacuna by producing the said alleged Will.
According to me, the two substantial questions of law raised by the Appellant can be framed as substantial questions of law in this appeal.
It is submitted by the learned Counsel for the Appellant that Respondents 3 to 5 obstructed to the delivery of property on the basis of an alleged
Will dated15.8.1976 executed by Chikona alias Kembiah. Though the Will was dated 15.8.1976, it is the specific case of Respondents 3 to 5 that
they came to know of the Will later in point of time and only on 10.12.1992, they came to know about the Will and thereafter, they realised their
right and obstructed to the possession of the property by the Appellant and to remove their obstruction, the Appellant filed the application. It is
further submitted by the learned Counsel for the Appellant that even though Respondents 3 to 5 claim right under the Will, they have-not produced
the Will before the court below nor let in evidence to prove the Will by examining the attesting witnesses and till the decree holder filed the petition
under Order XXI Rule 97 of the Code of Civil Procedure, the Will was not brought to light by Respondents 3 to 5 and considering all these
aspects, the Trial Court allowed the application filed by the Appellant. He further submitted that Respondents 3 to 5 are not strangers to other
Respondents and the decree holder has purchased the property from one Mallamma who was the legally wedded wife of Chikona alias Kembiah,
under a registered sale deed dated 24.8.1978 after the death of Chikona alias Kembiah,and the first Respondent claims to be the second wife
ofChikona alias Kembiah which fact was disputed by the decree holder in the suit itself and Respondents 3 to 5 claim tobe the children of the first
Respondent and therefore, they are also aware of the decree passed against Respondents 1 and 2 and having kept quiet all these years without
probating the Will, for the first time, when delivery was about to be taken by the Appellant, they started obstructing the same and therefore, the
petition was filed by the Appellant for removing the obstruction and the lower appellate court, without taking into consideration the fact that the
Will was not produced and no request was made by Respondents 3 to 5 to file the Will and to lead evidence,allowed the appeal and remanded the
case to the Trial Court with a view to give one more opportunity to Respondents 3 to 5 and the order of the lower appellate court in remanding the
matter is against Order XLI Rule 23A of the CPC and therefore, the order is liable to be set aside.
On the other hand, the learned Counsel for Respondents 3 to 5 submitted that the lower appellate court has rightly remanded the matter to the
Trial Court with a view to give one more opportunity to Respondents 3 to 5 to prove the Will and no prejudice would be caused to the Appellant
by the order of remand and therefore, the order of the lower appellate court can be sustained.
Heard the counsel for both sides.
It is seen from the order of the lower appellate court that the lower appellate court has remanded the matter only for the purpose of giving one
more opportunity to Respondents 3 to 5 to prove their case. It is observed by the lower appellate court that the Trial Court failed to consider
whether the first Respondent was the legally wedded wife of the deceased Chikona alias Kembiah and whether Respondents 3 to 5 are entitled to
any share in the property and whether Respondents 3 to 5 are bound by the decree passed in O.S. No. 166 of 1979 and no opportunity was
given to Respondents 3 to 5 to prove their case and on that ground, the lower appellate court allowed the appeal and remanded the matter to the
Trial Court.
According to me, the lower appellate court erred in remanding the matter without any regard to the provisions under Order XLI Rule 23 and
23A. Order XLI Rule 23 says that 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, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues
shall be tried in the case so remanded. As per the Madras Amendment, the appellate court is also entitled to remand the case if it considers
necessary in the interest of justice. As per Order XLI Rule 23A, where the Court from whose decree an appeal is preferred has disposed of the
case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall
have the same powers as it has under Rule 23. Therefore, to invoke Order XLI Rule 23 and Rule23A, the first condition to be satisfied is that the
appellate court must reverse the judgment and consider thatre-trial is necessary in the interest of justice and on being satisfied with the same, the
appellate court can remand the case to the Trial Court.
10 In this case, as stated supra, Respondents 3 to 5claim their right on the basis of the Will and admittedly they have not filed the Will before the
Trial Court in order to adduce any evidence to prove the Will. Even in the grounds of appeal, they have not raised any ground for letting additional
evidence by invoking Order XLI Rule 27 of the CPC and even before the lower appellate court, they have not produced the alleged Will under
which they claim their right.
Further, it is seen from the order of the Trial Court that Respondents 3 to 5 were given opportunity to lead evidence and they have not
examined any witness and they have marked only 6 Exhibits as Exs.R1 to R6 and therefore, it cannot be stated that no opportunity was given to
Respondents 3 to 5 to lead evidence. Having marked six documents, nothing would have prevented the Respondents to produce the Will and
prove the same through attesting witnesses. Therefore, in the absence of any application filed by Respondents 3 to 5 seeking leave of the court to
adduce additional evidence, it is not open to the lower appellate court to reverse the finding of the Trial Court and remand the matter by observing
that it is not known whether Respondents 3 to 5 were given opportunity before the Trial Court to prove the Will. In the absence of any grounds
raised in the memorandum of appeal regarding the denial of their right to file the Will and to lead evidence, the lower appellate court should not
have presumed that they were not given opportunity to produce the Will and prove the same.
According to me, the observation of the lower appellate court that there is no material available before it as to whether Respondents 3 to 5
voluntarily informed the court that they have no evidence or the Trial Court presumed that they have no oral or documentary evidence is a special
pleading on behalf of the Respondents. When Respondents 3 to 5 have specifically pleaded in the counter that they are claiming right under the
Will, it cannot be presumed that they were prevented from proving the Will by letting in evidence and even assuming that they were prevented from
letting in evidence to prove the Will as observed by the lower appellate court, in the absence of any application filed by them before the lower
appellate court to mark the Will and to lead evidence, the lower appellate court ought not have remanded the matter to the Trial Court.
Further, the lower appellate court did not give any finding regarding the Will when the Trial Court has given a specific finding that the Will set
up by Respondents 3 to 5 cannot be believed stating that the Will was not probated immediately after the death of the testator. Therefore, in the
absence of any finding given by the lower appellate court for reversing the judgment of the Trial Court, the lower appellate court ought not have
remanded the matter to the Trial Court only with a view to give one more opportunity to Respondents 3 to 5 to prove the Will and the finding of
the lower appellate court is against the provisions of Order XLI Rule 23 and therefore, both the substantial questions of law raised by Appellantare
answered in favour of the Appellant.
In the result, the civil miscellaneous second appealis allowed. The order passed by the lower appellate court is set aside and the lower appellate
court is directed to dispose of the appeal on merits within a period of eight weeks from the date of receipt of this order. No costs. The connected
miscellaneous petition is closed.