Sow dammal alias Sundarammal vs Veerammal and Others

K.S. Venkataraman, J.—This is an appeal by the plaintiff against an order of remand made by the learned Subordinate Judge of

Coimbatore. The main contest between the parties is whether the house in respect of which partition was sought was the joint family property of

Sreeranga Chettiar, the deceased father-in-law of the plaintiff or his separate property. If it was joint family property, the plaintiff would have a

larger share than if it was a separate property, because if it was joint family property the plaintiff''s deceased husband Nanjappa Chettiar would in

his own right have been entitled to one-third share and the plaintiff would be further entitled to the share of Sreeranga Chettiar along with the

others. The learned District Munsif, who tried the suit, on a consideration of the evidence, accepted the case of the plaintiff. On appeal preferred

by the first defendant, the learned Subordinate Judge felt some difficulty in deciding the case and he thought that in the interests of justice, the suit

should be remanded to the trial Court to allow both parties to let in more satisfactory evidence. Actually an endorsement was made by the learned

Counsel for the defendants in the trial Court that the defendants were not adducing any oral evidence. The only document that was marked on their

side was Exhibit B-1. Still a complaint was made in the grounds of appeal that the defendants were not allowed sufficient opportunity to adduce

evidence and actually I.A. No. 269 of 1965 was field to receive as additional evidence some receipts for payment of house tax in the name of

Sreeranga Chettiar. With reference to these, the learned Subordinate Judge recognised that in view of the endorsement on the plaint by the learned

Counsel for the defendants, he was unable to hold that the appellant was denied any opportunity by the trial Court to adduce evidence. But in view

of his earlier inclination to remand the suit, he observed that it was a fit case for remand even apart from I.A. No. 269 of 1965. He formally

allowed I.A. No. 269 of 1965 on the first defendant paying Rs. 35 to the other side.

The order of remand is opposed to the terms of Order 41, Rule 23, Civil Procedure Code, as amended by this Court and uniformly interpreted

by decisions of this Court. Note : Kalahasti Veeramma Vs. Prattipati Lakshmayya and Others, , Kanjanur Sri Agneswaraswami Devasthanam Vs.

Thillai Govinda Pandithan, , Thirumalaiswamy Mudali Vs. Periasami Mudali and Another, , Middi Ramakrishna Rao Vs. Middi Rangayya and

Others, , Ahamed Rowther Vs. Bathumal Beevi and Another, , Balasubramania Iyer Vs. Subbiah Thevar and Another, , Chinnam Ambalam v.

Ramiah Maniam (1968) 81 L.W. 296, Achammal and Another Vs. N. Krishna Naidu, , Subramanian and Another Vs. Kaliammal and Others, ,

Order 41, Rule 23, as amended in Madras, states:

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

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

case, the Appellate Court may by order remand the case...

This is the only provision for remand. The following four rules, Order 41, Rules 24, 25, 26 and 27, deal with a situation where the appellate Court

has to keep the appeal on its file and dispose it of. Order 41, Rule 24 deals with a case where the evidence on record is sufficient to enable the

appellate Court to pronounce judgment; the appellate Court may, after re-settling the issues finally determine the suit. Order 41, Rule 25 deals with

a case where it is necessary to take additional evidence on the fresh issues which are to be framed by the appellate Court. The appellate Court

may have the evidence recorded and findings submitted by the trial Court but should dispose of the appeal itself finally. Order 41, Rule 27 deals

with a situation where the parties were prevented from adducing necessary evidence before the trial Court and with a case where the appellate

Court itself wants fresh evidence to be recorded. There again the appellate Court has to keep the appeal on its file. It is therefore clear from the

scheme of the rules that generally speaking only where it is not possible to apply Order 41, Rules 24 to 27, a remand should be resorted to under

Order 41, Rule 23. It will be noted further that before remanding the case, Order 41, Rule 23 itself contemplates that the appellate Court should

reverse or set aside the decree. Reading the rules together, this provision will not apply to a case where the District Munsif has considered the

entire evidence, but in the opinion of the appellate Court, a different view ought to be taken of the evidence and the appellate Court is in a position

to come to a finding on the evidence on record. In such a case, it is the duty of the appellate Court to consider the matter as it stands and give its

own finding in reversal of the finding of the trial Court. But that would not justify a remand. Here it will be noted that the learned District Munsif did

not shut out any evidence and he considered the evidence including Exhibit B-1 which was relied on strongly by the defendants. It may be that he

was wrong in his appreciation of the evidence, but that by itself would not justify a remand and the learned Subordinate Judge was not justified in

allowing the parties to fill up any lacuna in the evidence unless the strict conditions of Order, 41, Rule 27, were satisfied.

So far as I.A. No. 269 of 1965 is concerned, prima facie the explanation of the first defendant contained in the affidavit filed in support of the

application may be accepted, namely, that even though copies of tax receipts were applied for, the copies were obtained only after the trial of the

case was over. There may be no objection to the reception of these tax receipts and indeed Sri P. S. Ramachandran, learned Counsel for the

appellant, submits before me that the plaintiff may have no objection to the reception of these tax receipts because in his view they will not advance

the case of the defendants. Any how, I am not inclined to interfere with the reception of the additional evidence in I.A. No. 269 of 1965, namely,

the tax receipts, and the oral evidence which will be necessary to prove them. But beyond that, the provisions of Order 41, Rule 27 should be

strictly complied with by the appellate Court. It being common ground that the parties were not per-vented from adducing any evidence, the only

provision that should be applied by the appellate Court, is whether the appellate Court itself requires any document to be produced or any witness

to be examined to enable it to pronounce judgment or for any other substantial cause. As has been pointed out in a number of decisions, the

appellate Court should come to a finding on that question and this finding could only be after considering the entire evidence already on record.

Beyond this, it is not desirable for me to say anything about the merits of the case.

Accordingly the order of the learned Subordinate Judge dated 17th September, 1966 is set aside subject to the reservation in respect of I.A.

No. 269 of 1965 as observed herein. The learned Subordinate Judge will keep the appeal on his file and dispose of the appeal according to law.

Leave refused.