Ramachandran vs Chellachamy

T. Raja, J.—The present Civil Miscellaneous Appeal No.861 of 2010 has been filed challenging the correctness of the decree and judgment in A.S. No. 38 of 2009 dated 30.10.2009 passed by the learned Subordinate Judge, Ramanathapuram.

The appellants before this Court are the plaintiffs before the trial Court in O.S. No.17 of 2003 filed for the relief of a decree for declaration and consequential injunction.

Brief facts leading to the filing of the Civil Miscellaneous Appeal is given below :

The plaintiffs/Appellants filed a suit for a declaration of title and permanent injunction against the respondent from interfering with the peaceful possession of the suit property, on the ground that he became the owner of the suit property from the date of purchase of the land in question in Survey No.112/1D by a registered sale deed dated 11.12.2002, the punja land having its extent of 1.16 acres. Though the said prayers were objected by the defendant, on completion of the trial, the trial Court had framed four issues and given its finding on the above issues accepting the case for grant of permanent injunction since the plaintiffs have proved possession of the suit property. However, the prayer for declaration of title was refused. Therefore, aggrieved by the non grant of the declaratory relief, while granting the relief of permanent injunction, the plaintiffs filed their appeal before the learned First Appellate Court. It should be also noted that the defendant against the grant of relief of permanent injunction, filed the appeal in O.S.No.17 of 2003 dated 09.01.2008. Both the appeals were heard by the learned Appellate Court.

The learned appellate Court after considering the appeals of both parties remanded the matters back to the trial Court, by giving a direction to the trial Court to re-do the entire exercise of both the reliefs sought for by the plaintiffs/appellants since the decree for permanent injunction, was also set aside.

Aggrieved by the remand order passed by the learned First Appellate Court, the present Civil Miscellaneous Appeal has been filed against the decree and judgment passed in A.S.No.38 of 2009 dated 30.10.2009.

While assailing the correctness of the impugned judgment and decree, it was argued by the learned Counsel for the plaintiffs/appellants that when there has been a categorical and explicit finding by the trial Court on the issue of possession of the suit property in favour of the plaintiffs/appellants, the learned Appellate Court while remanding the matter back, ought to have given a finding and conclusion while setting aside the relief of permanent injunction. But, in the present case, the learned First Appellate Court erroneously without assigning any reason, by cancelling the relief of permanent injunction granted by the trial Court, that was reached on proper evidence, wrongly ordered the remand. Therefore, he pleaded, this approach is running contrary to the principles as laid down in Order 41 Rule 31 of Civil Procedure Code, which enjoins that if the appellate Court cancels or modifies any relief granted by the lower Court, necessarily specific reasons should be given therefor, for modification or cancellation of the relief granted by the lower Court. But, without complying these mandatory conditions as adumbrated in Order 41 Rule 31 of Civil Procedure Code, simply and mechanically remanded the matter and it will create a great prejudice to the plaintiffs/ appellants before the trial Court.

Therefore, it was pleaded by the learned Counsel appearing for the plaintiffs/appellants that the impugned judgment and decree passed by the learned First Appellate Court, shall be liable to be set aside and finally, he made it clear that so far as the order of remand is concerned, he has no objection, provided the learned First Appellate Court has directed the trial Court to go into the question of relief of declaration of title in respect of the suit land covered in Survey No.112/1D.

In reply, the learned Counsel for the respondent would submit that the order of remand need not be interfered with by this Court for the reasons that learned First Appellate Court has directed the matter to be re-heard by the trial Court as it has not satisfied with the case of the plaintiffs/appellants and in respect of the question of declaration of title of the suit property, the principle that "possession will follow title" has to be applied in this case and by applying this right principles, the learned First Appellate Court has passed the present impugned judgment and decree, therefore, the trial Court can re-hear the matter afresh on both questions, namely, on the declaration of title and on the question of possession of the suit property. Finally, he argued that if the impugned judgment does not mention about the possession aspect to be re- examined, this will not have any cascading effect upon the entire exercise going to be undertaken by the learned trial Court, hence, no error can be attributed against the impugned judgment. This Court is not able to agree with this argument of the learned Counsel for the respondent.

Prima facie by going through the findings in judgment it must be mentioned that the trial Court has given its categorical finding one in favour of the plaintiffs in respect of the possession of the suit property and another against the same plaintiffs, in respect of the declaratory prayer. The learned First Appellate Court while disagreeing with the finding recorded by the trial Court on both issues, should have rendered a reasoned conclusion as to why the learned First Appellate Court had disagreed with the conclusion reached by the trial Court for setting aside the judgment and decree, on the question of possession of the suit property.

Moreover, as rightly argued by the learned Counsel for the appellants, when there is a finding given by the trial Court on the question of possession of the suit property covered in Survey No.112/1D having an extent of 1.16 acres, without finding fault with such findings, the learned appellate Court ought not to have set aside that portion of the finding directing the trial Court again to give a clear finding on the same issue of possession of the suit property. This issue has not been addressed properly, as adumbrated in Order 41 Rule 31 of Civil Procedure Code. Significantly, it must be mentioned that the Appellate Court has completely lost sight of the basic requirement to frame even the issue to be answered in the appeals and, without framing any issue, the appeals are disposed of. A mere reading of the judgment impugned herein does tell this Court to clarify one another error that when two appeals were filed by both plaintiffs and the defendant, namely, one by the plaintiff against the non- grant of declaratory relief and the other by the defendant against the decree for injunction in respect of possession of the suit property, unfortunately, both appeals were allowed, therefore, I fail to understand both the logic and the approach adopted by the appellate Court therein.

It is well settled that it is the duty of the appellate court, hearing the appeal, to raise and set out the points for determination and to state the reasons for the decision and also focus on the specific and rival contentions arising for determination. It is also well settled that even if the first appellate court does not comply with the requirements of Order 41 Rule 31 CPC, unless it is a substantial error which has affected the decision of the case on merits, it is not a proper ground for interference. But, in the present case, this Court is able to see that the first appellate court has committed a substantial error by not only not framing issues but also due to its failure to reach the conclusion in a right perspective. Secondly, the appellate court has casually ordered for remanding the matter back to the trial court when the appellate court itself has got not only the same power possessed by the trial court to examine and cross-examine the parties while receiving additional evidence, but also it has been conferred with higher powers to modify or dismiss the judgment and decree passed by the trial Court. While so, the order of remand directing the trial court to re-do the whole exercise not only amounts to wastage of precious time of the trial court but also the appellate Court. A mere perusal of the impugned remand order leaves no more doubt that this order has been passed by the appellate Court in exercise of its appellate power, but some of the issues have not been dealt with as relied upon by the plaintiffs.

Therefore, this Court, being not agreed with the conclusion reached by the learned First Appellate Court, is inclined to interfere with the same and accordingly, by setting aside the said findings of the first Appellate Court, accordingly remands the matter back to the First Appellate Court for rehearing the appeals on merits. It is needless to mention that the First Appellate Court shall deal with the first appeals filed by both parties as though the appeals are filed against the judgment of the trial Court in judgment and decree dated 09.01.2008, passed in O.S.No.17 of 2003. Accordingly, the Civil Miscellaneous Appeal is disposed of. However, there is no order as to costs. Consequently, connected Miscellaneous Petition is closed.