S.A.C. Alagan vs All India Islamic Foundation, Chennai and The Crescent Matriculation School for Girls

Honourable Mr. Justice G. Rajasuria

This Second Appeal is focussed by the original Plaintiff animadverting upon the judgment and decree dated 22.12.2009, passed in A.S. No. 32

of 2008 by the learned Principal District Judge, Madurai in reversing the judgment and decree dated 30.12.2004, passed in O.S. No. 141 of

2001 by the learned District Munsif, Melur.

The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.

The short point that falls for consideration before this Court in this Second appeal is as to whether the Second Appeal is maintainable?

A few points which are absolutely necessary and germane for the disposal of this second appeal would run thus:

The suit for bare injunction filed by the plaintiff was decreed. Aggrieved by the judgment and decree of the trial Court, the defendants preferred

appeal. The first appellate Court by its judgment and decree dated 22.12.2009, held that the matter has to be remitted back to the trial Court for

entertaining additional evidence and for deciding the case afresh. As against which the plaintiff earlier filed C.M.A. strictly in accordance with

Order XL Rule 1(u) of Civil Procedure Code. However, before this Court in C.M.A. the following order emerged:

Both the learned counsel on record for the appellants as well as the respondents 1 and 2 are present. In view of the endorsement made by the

learned counsel for the appellant, this Civil Miscellaneous Appeal is dismissed as withdrawn. No costs.

The learned counsel for the appellant/ plaintiff would submit that in view of the judgment of this Court in Jegannathan and another v. Raju

Sigamani reported in 2008 (4) TLNJ 49 (Civil) only second appeal could be filed and not C.M.A. and that the endorsement of not pressing the

Civil Miscellaneous Appeal, was made not with an intention to give up the plaintiff''s claim in getting his grievance processed by the High Court.

Even the learned counsel for the respondents/defendants in all fairness has submitted that the C.M.A. was not pressed with any intention to give up

the grievance in the C.M.A. filed before the High Court, but with an intention to get their case processed by filing this Second Appeal only.

The learned counsel for the appellant/ plaintiff would submit that the endorsement of not pressing the Civil Miscellaneous Appeal was made

reserving the plaintiff''s right to prefer this Second Appeal only. Learned counsel for the respondents/defendants in all fairness would state that such

was the intention of the plaintiff, while withdrawing the Civil Miscellaneous Appeal.

The learned counsel for the respondents/ defendants would also cite the decision of the Hon''ble Apex Court in Narayanan Vs. Kumaran and

Others, . Certain excerpt from it would run thus:

It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the

decree if the Appellate Court, instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of

remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand where it is to be treated as a decree and

not a mere order. In these circumstances, it is quite safe to adopt that appeal under Order 43, Rule (1) clause (u) should be heard only on the

ground enumerated in Section 100. We therefore, accept the contention of Mr.T.L.V. Iyer and hold that the appellant under an appeal under

Order 43 Rule (1) clause (u) is not entitled to agitate questions of facts. We, therefore, hold that in an appeal against an order of remand under this

clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and

cannot canvass all the findings of facts arrived at by the lower Court.

I have gone through the judgment of this Court in Jegannathan and another v. Raju Sigamani reported in 2008 (4) TLNJ 49 (Civil).

I would like to extract hereunder the relevant provisions of law, so to say Order XLIII Rule 1 (u) of Code of Civil Procedure:

1 (u)an order under Rule 23 or Rule 23A of Order XLI remanding a case, where an appeal would lie fro m the decree of the Appellate Court;

As such, it is palpably and pellucidly clear that if the appellate Court passed an order remanding the matter to the lower Court, then, it should be

treated as an order, as against which appeal would lie and it cannot be treated as a decree.

No doubt, in the cited decision, taking into consideration the singularly singular features involved in that case, the learned Single Judge of this

Court felt that only Second Appeal would lie and not Civil Miscellaneous Appeal. As such, each and every case has to be dealt with independently

in the wake of Order 43 Rule 1(u) of the Code of Civil Procedure. Here I recollect the broad proposition of law that ""a precedent should be

applied only in consimili casu and not in a matter where factually that is distinguishable"". Here, the fact remains that the first appellate Court did not

decide anything on any issue, but only remanded the matter back to the trial Court for evidence and for fresh disposal. Hence, in such a case, this

case squarely comes within the parameters of Order XLIII Rule 1(u) of C.P.C.

Therefore, the Registry is directed to number the Second Appeal as Civil Miscellaneous Appeal and list it as expeditiously as possible.

With the above direction, this Second Appeal is disposed of. No costs.