S. Umapathy vs Arunachalam Pattankattiar and Another

P. Sathasivam, J.—Aggrieved by the order of remand made by the Principal District Judge, Tirunelveli in A. S. No. 74 of 1997 remitting the

matter to the trial Court for fresh disposal, the plaintiff has filed the present appeal. The appellant has filed O.S. 443/88 on the file of the Principal

District Munsif, Tirunelveli for a declaration that the plaint schedule property is a ""Common Mutham"" belonging to him and the defendants. He also

prayed for mandatory injunction directing the respondents to remove the walls put up by them in the plaint schedule. The trial Court after trial

decreed the suit in favour of the plaintiff. The defendants filed A.S. 74/ 97 on the file of the Principal District Judge, Tirunelveli. The lower appellate

Court after entertaining additional documents, remitted the matter to the trial Court for fresh disposal, against which the present Civil Miscellaneous

Appeal has been filed.

When A.S. 74/97 is pending before the Principal District Court, Tirunelveli, the appellants therein, respondents herein, filed I.A. 102/99 for

reception of certain documents as additional evidence under Order 41, Rule 27. On the basis of the said documents, it is stated that the suit

property in T.S. No. 470 is not the ""Common Mutham"" and the defendants are entitled to east-west 27-7/8 (Vernacular matter omitted--Ed.) =

49-14'' which is inclusive of T.S. No. 470. The reading of the Order of the lower Appellate Court shows that after perusing the documents, the

learned District Judge remanded the matter to the trial Court for fresh consideration. Learned counsel appearing for the appellant would contend

that for reception of certain documents, it would not be open to the appellate Court to remit the case to the trial Court and he also contended that

the respondents herein failed to furnish any reason for not placing those documents at the appropriate stage, namely, before the trial Court. The

learned counsel appearing for the respondents who has filed the Caveat would state that the learned appellate Judge constrained to remit the

matter not only on the basis of certain documents placed by way of additional evidence, but also on considering the judgment and decree of the

trial Court. After going through the judgment of the learned District Judge, I am unable to accept the said contention.

There is no dispute that even at the appellate stage, it is open to the parties to file a petition for reception of documents as additional evidence in

support of their claim; accordingly the respondents herein/appellants before the lower appellate Court filed I.A. 102/99 to receive certain

documents as additional evidence under Order 41, Rule 27. It is but proper for the Court that before entertaining those documents, the party or

parties must satisfy that they could not place those documents at the appropriate stage, namely, before the trial Court and there must be a bona

fide effort in not filing those documents before the trial Court. In any way, the learned District. Judge failed to consider this aspect. It is settled law

that unless there is acceptable reason for not placing the required documents at the appropriate stage, the parties cannot be permitted to place the

documents as additional evidence at the appellate stage. The learned Judge has not considered this aspect and there is no finding or conclusion for

reception of those documents at the appellate stage. Mr. K. Srinivasan, learned counsel appearing for the respondents has fairly stated that there is

no such finding or conclusion by the learned District Judge. Without rendering a specific finding and reason for entertaining additional evidence,

those documents cannot be looked into. Such recourse has not been followed by the lower appellate Court. In other words, the lower appellate

Court failed to satisfy the condition prescribed for reception of additional evidence under Order 41, Rule 27 (1) (aa) and (2), CPC.

The other infirmity in the order of the lower appellate Court is that mere reception of additional documents or additional evidence could not be a

ground for remand and to try the suit once again by the trial Court. The first appellate Court itself can record evidence and mark document s as

mentioned in Order 41, Rule 27(1), CPC. In this regard, learned counsel for the appellant has brought to my notice a Division Bench decision of

this Court reported in Visalakshi Animal v. Dhanalakshmi Ammal, (1989) 104 MLW 414. The following observation of the Division Bench with

reference to remand by an appellate Court under Order 41, Rule 23 is relevant :--

........... .The unsatisfactory consideration of an issue by the first Court, and the non-advertence to the judicial precedents by the first Court while

deciding an issue and the need to take additional evidence, should not always be counted in favour of making an order of remand. These lacunae, if

in fact they are present, can be rectified by the appellate Court itself, unless there are very compelling circumstances to make an order of remand.

An order of remand should not be taken to be matter of course on the above grounds. The power of remand should be sparingly exercised. There

should be always endeavour to dispose of the ease by the appellate Court itself, when the commissions and omissions made by the first Court

could be corrected by the appellate Court. It is not claimed by either side that there is a total dearth of evidence to decide the concerned

questions. May be the parties were and are anxious to place additional evidence. But even that question can be thrashed out and settled by the

appellate Court itself. All the questions require comprehensive consideration on merits and decisions thereon the learned single Judge himself and

we are not able to sustain the order of remand made on the grounds expressed by the learned single Judge on the facts of the present ease. The

question of additional evidence, if there is a move by any of the parties, shall certainly be considered by the learned single Judge on merits while

disposing of the first appeal.

The same position has been reiterated by S. M. Sidickk, J., in Duraisamy Pillai and Others Vs. Mannammal and Another, . After referring to the

Division Bench decision referred to above, the learned Judge has made the following conclusion :--

''Therefore the mere reception of additional documents or additional evidence could not be a ground to order for remand and to try the suit once

again by the trial Court. The first appellate Court itself can record the evidence and mark the documents as mentioned in Order 41, Rule 27 (1) of

CPC............

The first infirmity committed by the lower appellafe Court is that there is no specific finding and reason for reception of additional documents at

the appellate stage and the appellate Court failed to consider the claim of the appellants therein in terms of Order 41, Rule 27 (1) (aa) and (2),

CPC. Another infirmity is that in spite of considering those documents, after satisfying the above-mentioned provision, viz. Order 41, Rule 27 (1)

(aa) and (2), it is open to the lower appellate Court to consider the additional documents or additional evidence and record evidence and mark

documents as mentioned in Order 41, Rule 27 (1), CPC. Here again, the lower appellate Court failed to follow the said procedure. In a matter like

this, there should be always endeavour to dispose of the case by the appellate Court itself. When certain commissions and omissions made by the

trial Court is brought to the notice of the appellate Court, the same should be corrected by the appellate Court.

In the light of what is stated above, the judgment and decree of the lower appellate Court remanding the matter to the trial Court is set aside and

the Principal District Judge, Tirunelveli is directed to take the appeal A.S. No. 74 of 1997 on her original file and issue notice to alt the counsel on

record and decide the matter afresh as stated above after giving sufficient opportunity to both the parties. If the appellate Court feels that appellants

have made out a case for reception of additional evidence, after rendering a specific finding, record evidence and mark the documents and dispose

of the appeal one way or the other, otherwise dispose of the same after considering the judgment and decree of the trial Court. Net result, the Civil

Miscellaneous Appeal is allowed. No costs. Consequently. C.M.P. 19436/99 is closed.