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High Court of KeralaSingle JudgeAppeals allowed; remand order set aside; remand...

FAO (RO) Nos.9, 10 and 11 of 2020

Case / Petition Number:FAO (RO) Nos.9, 10 and 11 of 2020

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. Somarajan
Judgment Date
2022-02-23
Court Decision / Holding
Remand order set aside; matter remanded back to the First Appellate Court for fresh disposal, with directions for appearance on 03/03/2022 and disposal within two weeks. All appeals stand allowed; no costs.
Final Disposition
Appeals allowed; remand order set aside; remanded to First Appellate Court for fresh disposal; no costs.

Parties to the Case

Appellants / Petitioners

  • A.G. SASEENDRANATH @ SHASHI NATH
  • G.S.NARENDRANATH
  • G.S.KASINATH
  • KASINATHAN
  • NARENDRANATH
  • SAROJA
  • CHANDRAMATHY
  • INDIRA
  • REMA BAI
  • SULOCHANA
  • SURENDRAN
  • LATHIKA
  • SAROJAM

Respondents

  • PADMINI
  • USHA
  • JAYAVANTHAN
  • KANJANA N.S.

Legal Representation & Advocates

Counsels for Petitioners

  • • DINESH R. SHENOY
  • • SRI. EBIN MATHEW
  • • SRI. P.ROHIT PREMANANDAN SHENOY
  • • SRI. SAJAN MANNALI
  • • SMT.SANTHI K.PAI
  • • SMT.V.N.SHASHIKALA
  • • SRI.AADITHYAN S.MANNALI
  • • SMT.ARATI PRAKASH
  • • SMT.ANJANA M VADHYAR
  • • SMT. ATHULYA MARTIN
  • • SRI. SONY P.G.
  • •

Counsels for Respondents

  • • DINESH R. SHENOY
  • • SRI. EBIN MATHEW
  • • SRI. P.ROHIT PREMANANDAN SHENOY
  • • SRI.SAJAN MANNALI
  • • SMT.SANTHI K.PAI
  • • SMT.V.N.SHASHIKALA
  • • SRI.AADITHYAN S.MANNALI
  • • SMT.ARATI PRAKASH
  • • SMT.ANJANA M VADHYAR
  • • SMT. ATHULYA MARTIN
  • • SRI. SONY P.G.

Case Synopsis & Summary

These three first appeals arise from orders of remand issued by the First Appellate Court in relation to three suits Os Nos. 45/2016, 45/2014 and 41/2017 before the Sub Court Kochi and the Additional District Court – VII, Ernakulam. The High Court, heard by Justice P. Somarajan on 23 February 2022, held that the remand orders were not proper remands on merits but were grounded on extraneous considerations and inadmissible or misused documents, notably a death certificate under Order XLI CPC Rule 27 purportedly recording the age of a deceased as it related to acquisition of rights over immovable property. Citing the settled position in Gopalakrishnan v. Ponnappan and Others (2021) (5) KHC 548), the Court found that the appellate court failed to adhere to the remand prerequisites under Order XLI and violated Sections 23, 23A and 24 of Order XLI CPC. The Court set aside the remand and remanded the matter back to the First Appellate Court for fresh disposal, directing the parties to appear on 03/03/2022 and to dispose within two weeks. All the appeals are disposed with no costs, effectively allowing the underlying challenges to the remand orders.

Provisions of Law Cited

Order XLI CPC Sections 23, 23A, 24Order XLI CPC Rule 27

Legal Doctrines & Maxims

  • The duty of the first appellate court is not to do any reverse driving on flimsy ground by ordering remand without going into the merits and demerits of the case.
  • The basic principles governing acceptability of evidence and admissibility of documents must be observed; remand cannot be founded on extraneous evidence or grounds.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants challenged the remand orders, arguing that remand under Order XLI CPC cannot be ordered on flimsy or extraneous grounds. They contended that the first appellate court relied on a death certificate (Order XLI Rule 27 CPC) to infer age and status retroactively, which is not permissible as the document does not record the age of the decedent for the time of acquisition; the evidentiary value of such a certificate is limited to identity and date of death. The remand was therefore unwarranted and violated Sections 23, 23A and 24 of Order XLI CPC.

Contentions of Respondents

The respondents’ specific pleadings are not elaborately noted in the judgment. The Court notes that remand was sought by the first appellate court and premised on the submission of additional documents; the respondents’ arguments appear to have been that remand was necessary to adjudicate disputes and consider the documents under Order XLI Rule 27 CPC. The High Court ultimately found these grounds to be extraneous and set aside the remand.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Gopalakrishnan and Another v. Ponnappan and Others2021 (5) KHC 548PositiveCited as the settled legal position that remand cannot be ordered on flimsy or extraneous grounds and merits must be considered.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 23[rd] DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943 FAO (RO) NO. 9 OF 2020 AGAINST THE JUDGMENT DATED 19.12.2017 IN OS No. 45/2016 OF SUB COURT, KOCHI AGAINST THE JUDGMENT DATED 30.03.2019 IN AS No.29/2018 OF ADDITIONAL DISTRICT COURT - VII, ERNAKULAM ## APPELLANTS (RESPONDENTS/PLAINTIFFS): 1 A.G.SASEENDRANATH @ SHASHI NATH, AGED 69 YEARS, S/o GANESHA SHETTY, RESIDING AT C-701, ZINNEA, BAVDHAAN, PUNE-411021. 2 G.S.NARENDRANATH, AGED 64 YEARS, S/o GANESHA SHETTY, RESIDING AT CC.X/264, AMARAVATHY, KOCHI-682001. 3 G.S.KASINATH, AGED 56 YEARS, S/o GANESHA SHETTY, RESIDING AT C.C.X/26, AMARAVATHY, KOCHI-682001. BY ADVS. DINESH R.SHENOY SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY ## RESPONDENTS (APPELLANTS/DEFENDANTS): 1 PADMINI, AGED 52 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC.X/265, OPPOSITE KOKKERS THEATRE, AMARAVATHY, COCHIN-682002. 2 USHA, AGED 49 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC.X/265, OPPOSITE KOKKERS THEATRE, AMARAVATHY, KOCHI-682002. 3 JAYAVANTHAN, AGED 55 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC.X/265, OPPOSITE KOKKERS THEATRE, FAO (RO) Nos.9, 10 and 11 of 2020 2 AMARAVATHY, KOCHI-682002. BY ADVS. SRI.SAJAN MANNALI SMT.SANTHI K.PAI SMT.V.N.SHASHIKALA SRI.AADITHYAN S.MANNALI SMT.ARATI PRAKASH SMT.ANJANA M VADHYAR SMT. ATHULYA MARTIN SRI. SONY P.G. THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 23.02.2022, ALONG WITH FAO (RO).10/2020, 11/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO (RO) Nos.9, 10 and 11 of 2020 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 23[rd] DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943 FAO (RO) NO. 10 OF 2020 AGAINST THE JUDGMENT DATED 19.12.2017 IN OS No. 45/2014 OF SUB COURT, KOCHI AGAINST THE JUDGMENT DATED 30.03.2019 IN AS No.31/2018 OF ADDITIONAL DISTRICT COURT -VII, ERNAKULAM APPELLANTS (RESPONDENTS 1 TO 7, 10 & 11/DEFENDANTS 1 TO 7, 10 & 11: 1 KASINATHAN, AGED 60 YEARS, S/o GANESHA SHETTY, RESIDING AT C.C. X/26, AMARAVATHY, KOCHI-682001. 2 NARENDRANATH, AGED 64 YEARS, S/o GANESHA SHETTY, RESIDING AT C.C. X/264, AMARAVATHY, KOCHI-682001. 3 A.G. SASEENDRANATH @ SHASHI NATH, AGED 69 YEARS, S/o GANESHA SHETTY, RESIDING AT C-701, ZINNEA, BAVDHAAN, PUNE-411021. 4 SAROJA, AGED 67 YEARS, D/o GANESHA SHETTY AND W/o MURALEEDHARAN, RESIDING AT HOUSE NO.CC X/468, AMMAN KOVIL ROAD, AMARAVATHY, KOCHI-682001. 5 CHANDRAMATHY, AGED 72 YEARS, D/o GANESHA SHETTY, W/o RAMACHANDRAN, RESIDING AT HOUSE NO. C.C.X/267, GOPALAKRISHNA TEMPLE ROAD, AMARAVATHY, KOCHI-682001. 6 INDIRA, AGED 69 YEARS, D/o GANESHA SHETTY AND W/o RAJENDRAN, RESIDING AT HOUSE NO. C.C.X/270(765), NEAR J.D. TEMPLE, AMARAVATHY, KOCHI-682001. 7 REMA BAI, AGED 60 YEARS, D/o GANESHA SHETTY AND W/o JAYACHANDRAN, RESIDING AT HOUSE NO. C.C.X/265, AMARAVATHY, KOCHI-682001. FAO (RO) Nos.9, 10 and 11 of 2020 4 8 SULOCHANA, AGED 76 YEARS, D/o KASHINATHA SHETTY, W/o MURALEEDHARAN, RESIDING AT HOUSE NO. CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, KOCHI-682001. 9 SURENDRAN, AGED 75 YEARS, S/o SUBADRA AND GRANDSON OF KASHINATHA SHETTY, RESIDING AT HOUSE NO. CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, KOCHI-682001. BY ADVS. DINESH R.SHENOY SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY RESPONDENTS (APPELLANTS & RESPONDENTS 8 & 9/DEFENDANTS 8 & 9): 1 PADMINI, AGED 52 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, KOCHI-682002. 2 USHA, AGED 49 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, KOCHI-682002. 3 JAYAVANTHANAN, AGED 57 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, KOCHI-682001. 4 KANJANA N.S., AGED 62 YEARS, D/o NARAYANA SHETTY, 33, 2[nd] FLOOR, SRINGANDHANAGAR, VISHWANEEDAM POST, BANGALORE-560091. BY ADVS. SRI.SAJAN MANNALI SRI.AADITHYAN S.MANNALI SMT.ANJANA M VADHYAR SRI. SONY P.G. SMT.V.N.SHASHIKALA SMT. ATHULYA MARTIN SMT.ARATI PRAKASH SMT.SANTHI K.PAI THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 23.02.2022, ALONG WITH FAO (RO).9/2020 AND 11/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO (RO) Nos.9, 10 and 11 of 2020 5 IN THE HIGH COURT OF KERALA AT ERNAKULAM **==> picture [52 x 8] intentionally omitted <==** THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 23[rd] DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943 FAO (RO) NO. 11 OF 2020 AGAINST THE JUDGMENT DATED 19.12.2017 IN OS No.41/2017 OF SUB COURT, KOCHI AGAINST THE JUDGMENT DATED 30.03.2019 IN AS No.32/2018 OF ADDITIONAL DISTRICT COURT - VII, ERNAKULAM ## APPELLANTS (RESPONDENTS/DEFENDANTS): 1 KASINATHAN SHETTY, AGED 60 YEARS, S/o GANESHA SHETTY, RESIDING AT CC X/265, AMARAVATHY, KOCHI - 682 001. 2 LATHIKA, AGED 47 YEARS, W/o KASINATHAN SHETTY, CC.X/265, OPPOSITE KOKKERS THEATRE, AMARAVATHY, COCHIN - 682 001. 3 NARENDRANATH, AGED 64 YEARS, S/o GANESHA SHETTY, RESIDING AT C.C.X/264, AMARAVATHY, COCHIN - 682 001. 4 SAROJAM, AGED 55 YEARS, W/o NARENDRANATH, RESIDING AT HOUSE NO.CC.X/265, OPPOSITE KOKKERS THEATRE, AMARAVATHY, KOCHI - 682 001. BY ADVS. DINESH R.SHENOY SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY ## RESPONDENT (APPELLANT/PLAINTIFF): PADMINI, AGED 52 YEARS, D/o NARAYANA SHETTY, RESIDING AT CC X/265, OPP. KOKKERS THEATRE, AMARAVATHY, COCHIN - 682 002. THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 23.02.2022, ALONG WITH FAO (RO).9/2020 AND 10/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO (RO) Nos.9, 10 and 11 of 2020 6 ## **JUDGMENT** The duty of the first appellate court is not to do any reverse driving on flimsy ground by ordering remand without going into the merits and demerits of the case and the dispute involved. That is what is actually done by the first appellate court in the instant case without adhering to the requirement for a remand and in violation of the mandate under Sections 23, 23A and 24 of Order XLI C.P.C. The legal position has been settled by this Court in ## **Gopalakrishnan and Another v. Ponnappan and Others [2021** ## **(5) KHC 548]** . 2. It is on an extraneous ground a remand of the matter was ordered without going into the merits and demerits of the adjudication rendered by the trial court and the decree and judgment were set aside for the said purpose. The first appellate court has committed a grave error in ordering remand of the matter, that too, by taking into consideration a document which was filed under Order XLI Rule 27 C.P.C. i.e. a death certificate of one Kasinathan Shetty who passed away as early as on 25/07/1960 FAO (RO) Nos.9, 10 and 11 of 2020 7 and went on considering the same based on the age of the deceased entered in that document and found that at the time of acquisition of right over immovable property, he was only a minor. The first appellate court did not understand the evidentiary value of a death certificate. Further, it is not discussed anywhere in the judgment whether it would come under the purview of Order XLI Rule 27 C.P.C. In fact, no sufficient reason was brought out to receive additional documents in the first appellate stage. No sufficient reason was also brought out why it was not produced at the trial stage. In fact, the said document has no much relevance regarding the age as entered in the document since it was not intended to record the age of the deceased. Hence, all the discussions made in that behalf by the first appellate court is highly extraneous and unwarranted. 3. The age as that of the deceased who died as early as on 25/07/1960 in the death certificate may not get any relevance and evidentiary value except to the extent of proving the identity of the deceased and the date of death. When it is related to the year 1960, it is too cumbersome FAO (RO) Nos.9, 10 and 11 of 2020 8 to rely on such entry especially when it is not intended to record such entry. The basic principles governing acceptability of the evidence has been overlooked by the first appellate court. Hence, the order of remand is liable to be set aside. I do so. The matter is remanded back to the first appellate court for fresh disposal by attending all the disputes involved in the matter, for which the parties shall appear before that court on 03/03/2022. The first appellate court shall dispose of the matter within two weeks positively from the date of appearance and report compliance. All the appeals will stand allowed accordingly. No costs. Sd/- ## **P.SOMARAJAN** **JUDGE** DMR/-