GOPALAKRISHNAN and PRADEEP KUMAR v. V. PONNAPPAN and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943** **FAO (RO) NO. 14 OF 2021** **(AGAINST THE JUDGMENT & DECREE IN AS 83/2016 DATED 15/01/2021 OF SUB COURT, CHERTHALA, ALAPPUZHA ARISING FROM THE JUDGMENT IN O.S.NO.338/2012 DATED 30/07/2016 OF THE ADDITIONAL MUNSIFF COURT,** ## **CHERTHALA)** ## **APPELLANT/RESPONDENT 1 & 2/DEFENDANT 1 & 2:** 1 GOPALAKRISHNAN AGED 71 YEARS S/O VELAYUDHAN,PURATHAMKULANGARA, VAYALAR MURI,VAYALAR EAST VILLAGE, CHERTHALA,ALAPPUZHA-688536. 2 PRADEEP KUMAR, AGED 43 YEARS S/O GOPALAKRISHNAN,PURATHAMKULANGARA, VAYALAR MURI,VAYALAR EAST VILLAGE, CHERTHALA,ALAPPUZHA-688536. BY ADVS. J.OM PRAKASH SRI.T.G.SUNIL (PRANAVAM) SRI.C.X.ANTONY BENEDICT SHRI.T.S.BHARATH KRISHNA SHRI.ADHEEP VIJAY SHRI.EMMANUAL SANJU ## **RESPONDENTS/RESPONDENTS/PLAINTIFF,DEFENDANTS 3,4 & LR'S OF THE 5TH DEFENDANT:** 1 V.PONNAPPAN AGED 81 YEARS S/O VELAYUDHAN,SAJEEV BHAVAN FROM PURATHAMKULANGARA,VAYALAR MURI, VAYALAR EAST VILLAGE,CHERTHALA, ALAPPUZHA-688536. 2 NARAYANANKUTTY, AGED 49 YEARS SREENANDANAM,VAYALAR.P.O, CHERTHALA, **FAO (RO) NO. 14 OF 2021 2** ALAPPUZHA-688536. 3 V.VISWANATHAN @ BABU AGED 69 YEARS POKKALISSERI,(PURATHAMKULANGARA), VAYALAR.P.O, CHERTHALA,ALAPPUZHA-688536. 4 SIVADASAN NAIR, AGED 56 YEARS PAPPALLIL,VAYALAR.P.O,CHERTHALA, ALAPPUZHA-688536. 5 PRASANNA KUMARI, AGED 67 YEARS W/O KRISHNANKUTTY KURUP,PAPPALLIL, VAYALAR.P.O, CHERTHALA,ALAPPUZHA-688536. 6 PRAVEEN KUMAR, AGED 39 YEARS S/O KRISHNANKUTTY KURUP,PAPPALLIL,VAYALAR.P.O, CHERTHALA, ALAPPUZHA-688536. 7 PRASEEDA, AGED 37 YEARS D/O KRISHNANKUTTY KURUP,PAPPALLIL, VAYALAR.P.O, CHERTHALA,ALAPPUZHA-688536. BY ADVS. T.JAYAKRISHNAN FOR R1 R.KRISHNAKUMAR (CHERTHALA)FOR R1 THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR ADMISSION ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **FAO (RO) NO. 14 OF 2021 3** ## **CR** ## **JUDGMENT** Under what circumstance, a remand of case can be ordered by the first appellate court, is it permissible to order remand in a routine manner simply on finding failure on the part of trial court to address any issue and what is the jurisdiction vested with the first appellate court in ordering remand of a case, are the questions came up for consideration. 2. It is a case wherein remand was ordered by the first appellate court simply on the reason that there is failure on the part of the trial court to appreciate the contention raised by the plaintiff regarding surrender of a portion of his property to the way in dispute and observed that the trial court failed to appreciate the above facts and circumstances in its correct perspective. Further, directions were issued to permit both the parties to adduce further evidence, if any and if necessary, remit the commissioner's report and plan back to the ## **FAO (RO) NO. 14 OF 2021 4** commissioner. Paragraph 14 of the impugned judgment would show the way in which the first appellate court ordered remand of the case without entering into any finding whether additional evidence is required in the case, without raising any new issues pertaining to the dispute and without answering whether there is failure on the parties to tender evidence on the disputed issues. It is a case wherein Exts.C2 (a) plan and C2 report were prepared through a survey commission, which were accepted by the trial court as well as the first appellate court. But a remand of the case was ordered solely on the ground that there is failure to consider the contention raised by the plaintiff regarding dedication of part of his property to the way in question. The evidences on record would show that the parties have tendered evidence fully knowing the dispute involved. The provisions enabling the first appellate court to order remand of a case viz., Rule 23 and Rule 23 A of Order XLI C.P.C. are extracted below for reference: **FAO (RO) NO. 14 OF 2021 5** _“_ _**23. Remand of case by Appellate Court** – Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand._ **23 A. Remand in other cases** – Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.” 3. Apart from Rule 23 and 23 A, Rule 24 is also incorporated in Order XLI C.P.C., mandating the appellate court to exercise its jurisdiction to determine the issue, when the parties have adduced evidence sufficient to determine the issue, without a remand of the case, which is extracted below for reference: _"_ _**24. Where evidence on record sufficient, Appellate Court may determine case finally** –_ ## **FAO (RO) NO. 14 OF 2021 6** _Where the evidence upon the record is sufficient_ _to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."_ _(emphasis supplied)_ 4. A conjoint reading of Rule 23, 23A and 24 of Order XLI C.P.C. would make it clear that non- consideration, failure or mis-appreciation of an issue may not be a ground to order remand of the case, when the evidence on record is sufficient for determination of the issue by the appellate court. It is within the permissibility of the first appellate court to take up and consider every issue in dispute and to determine the same when evidence on record is sufficient for its adjudication, irrespective of whether it was taken up or answered by the trial court. In short, a remand of the case to the trial court is not permissible, when the evidence on record covers the material for adjudication of every ## **FAO (RO) NO. 14 OF 2021 7** issues involved in the suit. It is also within the jurisdiction of the appellate court to settle and decide any issue, which is essential for fair determination of the dispute involved, when evidence on record is sufficient. The expression _"evidence_ _upon the record is sufficient"_ incorporated in Rule 24 shall not be understood to cover any failure upon the party to tender any evidence, insufficiency of evidence or any laches thereof so as to bring the matter within the purview of that Rule, when the party is aware of the dispute involved and the nature of issues to be adjudged. Hence, a remand of the case, either to fill up the lacuna in the evidence or in the case set up or failure to adduce evidence cannot be a ground of remand, when the dispute was within the knowledge of the parties and proceeded or defended with the suit with that knowledge. But, when there is denial of sufficient opportunity to adduce evidence resulting in grave injustice to the party, it is permissible to order remand of the case. ## **FAO (RO) NO. 14 OF 2021 8** 5. The Apex Court in **Brabham Chandler Sananda v. Ranadhir Chandra Dutta [(1988) 1 SCC 383]** had the occasion to deal with the permissibility of a remand under Order XLI Rule 23 A C.P.C. and laid down that even though formally an issue not framed but if parties went to trial and adduced evidence keeping that issue in mind and drew attention of court in that regard, appeal need not be remanded for a finding on that question. 6. The impugned judgment suffers yet another material defect. The first appellate court directed the trial court to remit the commissioner's report, if it is found necessary, overlooking the legal position settled by a Division Bench of this Court in **Francis Assissi v. Sr.Breesiya (2017 (1) KLT 1041).** A report submitted by the commissioner under Order XXVI Rule 10 C.P.C. will form part of the record of the court. As such, it is not permissible to remit back the commissioner's report, though a second commission is permissible. **FAO (RO) NO. 14 OF 2021 9** 7. None of the grounds mentioned above was taken by the first appellate court so as to enable a remand of the case. Hence, the order of remand is set aside. The first appellate court is directed to receive back the appeal on file and adjudicate the issues in reference to Exts.C2 report and C2(a) plan and the documents and evidence on record within a period of three months from the date of appearance of parties. The parties shall appear before the appellate court on 11/10/2021. The appeal will stand allowed accordingly. Sd/- ## **P.SOMARAJAN** **JUDGE** sv