NARENDRAN and INDIRA v SUBADRA and RAGHUPATHI

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY, THE 30TH DAY OF NOVEMBER 2016/9TH AGRAHAYANA, 1938** **FAO (RO).No. 164 of 2013 () ----------------------------** **AGAINST THE JUDGMENT IN AS 123/2008 of PRL.SUB COURT,IRINJALAKUDA DATED 15-02-2013** **AGAINST THE JUDGMENT & DECREE IN OS 89/2007 of MUNSIFF'S COURT, CHALAKUDY DATED 17.07.2008** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** **---------------------------------** **1. NARENDRAN, S/O.MATHELI NARAYANAN, AGED 70, POOLANI DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK.** **2. INDIRA, AGED 65 , W/O. NARENDRAN, POOLANI DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK.** **BY ADV. SRI.T.N.MANOJ** **RESPONDENTS/APPELLANTS/PLAINTIFFS: --------------------------------** **1. SUBADRA, W/O.MATHELI RAMAKRISHNAN, POOLANI DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK - 686502** **2. RAGHUPATHI, S/O. MATHELI NARAYANAN, POOLANI DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK.** **R2 BY ADVS. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN** **THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 30-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J. ------------------------------F.A.O.(RO) No.164 of 2013** ## **---------------------------------------------Dated this the 30[th] day of November, 2016** ## **JUDGMENT** Challenge in this appeal is against the order of remand passed by the lower appellate court. The suit is one for declaration and permanent prohibitory and mandatory injunction reliefs. 2. Heard the learned counsel for the appellants and the respondents. 3. This appeal, being in the nature of a second appeal, the questions of law raised are as follows: 1. Whether the appellate court was justified in ordering remand of the case in the absence existence of any of the contingencies mentioned in Rules 23, 23-A and 25 of O.XLI of the Code of Civil Procedure, which governs remand of the suit by the appellate court? 2. Whether the appellate court was justified in ordering remand of the suit for the mere purpose of enabling the plaintiff to adduce more evidence so as to enable the plaintiff to fill up the lacuna in the case **FAO(RO) 164/2013** **2** after having found that the trial court has properly appreciated the facts and law correctly while deciding issues framed in the suit and that the appeal deserved to be dismissed? 3. Whether or not the appellate court was empowered and justified in setting aside the judgment of the trial court merely for the purpose of remand and whether Order XLI Rule 23A empowers the appellate court to set aside a judgment answering all the issues correctly and properly, merely for the purpose of remand? 4. Is not the appellate court, exercised the discretion of remand in an arbitrary manner while passing an order of unmerited remand granting an unmerited long life to a meritless suit? ## 4. Short facts: Plaintiffs are the respondents. Item No.1 in plaint-A schedule belonged to husband of the 1[st] plaintiff as per Ext.A3. After his death, property devolved on the 1[st] plaintiff. Item No.2 in plaint-A schedule belongs to the 2[nd] plaintiff as per Ext.A1. Item No.1 in plaint-B schedule belongs to the 1[st] defendant as per Ext.A4. He assigned the property to the 2[nd] defendant, who is his wife, as per deed No.1837/03. Item No.2 of plaint-B schedule devolved on the 2[nd] defendant as per **FAO(RO) 164/2013** **3** Ext.A4. Item Nos.1 and 2 in the plaint-B schedule is lying contiguously. The entire properties originally belonged to Narayanan, father of the plaintiffs and defendants. On the eastern side, a canal road passes through. Property in between the canal road and Narayanan's property was purchased by the 1[st] plaintiff's son, Suresh, as per three documents. In order to carve out a pathway to the property belonging to Narayanan, Ext.A2 document was created. Thereafter, a pathway was put up towards the property of Narayanan at a width of 4.2 meters. That is shown in plaint-C schedule. A pathway having a width of 2.88 meters was made continuous to C schedule pathway towards north through the eastern boundary of Item No.1 in B schedule and also through the northern boundary of Item Nos.1 and 2 in B schedule and further through the western boundary of Item No.2 in B schedule. That pathway is described in plaint-D schedule. At the time when Item No.1 in B schedule was purchased by the 1[st] defendant, C and D schedule properties were not in existence. The plaintiffs /respondents claimed a right of easement by grant through the D schedule property. It is the **FAO(RO) 164/2013** **4** case of plaintiffs that the defendants filed O.S.No.41 of 2005, suppressing the right of plaintiffs. Ultimately, that suit was not prosecuted after the plaintiffs had entered appearance and filed a written statement. It is the case of the plaintiffs that some trees standing in the D schedule had to be removed to make that portion of the land suitable for ingress and egress. Since there were disputes regarding this, the suit was filed. 5. Defendants/appellants filed a written statement disputing the plaint claims. According to them, the property lying between canal Road and that belonged to Narayanan was not purchased by the plaintiff's son and his wife. The pathway mentioned above originated from the Canal bund up to the property of the 1[st] defendant. There was an agreement to put up a pathway through the western side up to the property of Ravi through the property of the 1[st] defendant, having a width of 2.88 meters. It was agreed to pay the prevailing market value for the land set out for creating a pathway. As such, no pathway was put up as claimed in the plaint. The suit itself is a misconceived action. The plaintiffs **FAO(RO) 164/2013** **5** are not entitled to get any relief since no pathway is in existence. Plaintiffs have no right of easement by grant through D schedule pathway. The suit is liable to be dismissed. 6. The trial court examined two witnesses on the side of the plaintiffs and one witness on the side of the defendants and also marked Exts.A1 to A6 and C1 & C2 series. 7. The trial court, after considering the evidence, dismissed the suit finding that the plaintiffs/respondents have failed to prove their right to get a declaration as well as injunction reliefs. 8. The plaintiffs took up the matter in appeal before the lower appellate court. The lower appellate court, after reappreciating the evidence, came to a conclusion that in the absence of any oral evidence, it was not possible to infer a grant in favour of the plaintiffs. It also opined that there was no reason to interfere with the finding of the trial Judge. It further found that the plaintiffs have failed to prove an easement by way of a grant through Item No.1 in plaint-B schedule. Thereafter, it proceeded to consider the feasibility **FAO(RO) 164/2013** **6** of remanding the case for giving an opportunity to the plaintiffs to adduce evidence regarding the right of grant claimed in the plaint. Ultimately, the decree passed by the trial court was set aside by the lower appellate court and the case was remanded invoking power under Order 41 Rule 23 (A) of the Code of Civil Procedure for fresh disposal in accordance with law. 9. Learned counsel for the appellants vehemently challenged correctness of the remand order. He relied on binding precedents to contend that the order of remand is unsustainable. A decision rendered by the Supreme Court in **Lisamma Antony and another v. Karthiyayani and another [2015 (3) Scale 836]** is pressed into service. The point decided therein is as follows: “Rule 23 of Order XLI of Code of Civil Procedure Code, 1908, (for short “the Code”) provides that 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 **FAO(RO) 164/2013** **7** a copy of its judgment and order to the Court from whose decree the appeal is preferred, which 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 all just exceptions be evidence during the trial after remand. Needless to say, in the present case, the suit was not disposed of on any preliminary issue by the trial court. The second appellate court should have restrained itself from remanding a case to the trial court. Remanding a case for re-appreciation of evidence and fresh decision in the matter like the present one is nothing but harassment of the litigant. The unnecessary delay in final disposal of a lis, shakes the faith of litigants in the court.” 10. This Court, while considering **John A.Augustine v. Renjan [2016 (3) KLT 670]** had occasion to go through the precedents on the point. An unreported decision of a Constitution Bench of the Supreme Court was referred to therein. It has been held by the Supreme Court that power to order retrial after remand, where there has already been a trial on evidence before the Court of first instance, cannot be exercised merely because the appellate Court is of the view **FAO(RO) 164/2013** **8** that the parties who could lead better evidence in the court of first instance have failed to do so. It is the definite opinion of the Constitution Bench that a trial de novo, after setting aside a final order passed by the Court of first instance may therefore be made only in exceptional circumstances, where there has been no real trial of the proceeding. This decision was followed in **John A.Augustine's case** . That apart, in paragraph 18, the law stated is as follows: “On a close reading of R.23-A of O.XLI of the Code it will be evident that, to invoke the power, vested in an appellate court, to remand a case, twin satisfactions will have to be arrived at. Firstly, the appellate court, on an analysis of the facts and on applying the principles of law, should find that the decree is to be reversed. Only after taking such a decision, the appellate court can step into the next arena. Second condition to be satisfied for invoking the power is that, the appellate court on merits, should find that a retrial is essential for the complete adjudication of the lis between the parties. Well settled is the proposition of law that whether the court should or should not remand a case is one of discretion. Surely, the discretion has to be exercised on sound and reasonable premises and guided by **FAO(RO) 164/2013** **9** judicial principles. If only these two conditions are satisfied, a remand under O.XLI R.23-A of the Code could be legally justified. Merely on establishing any one of the conditions mentioned above, an appellate court shall not remand a case to the lower court. In other words, these twin conditions are conjunctive and not disjunctive.” None of these conditions has been satisfied in the remand order. 11. Another learned single Judge in **Sekharan Nambiar v. Ramanunni Nambiar [1992 (1) KLT 429]** has taken a view that when each party went to trial fully knowing the rival case and led all the evidence not only in support of its own contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case and a remand in such a case is unjustifiable. 12. On a reading of the lower appellate judgment, it can be seen that the court has gone through the evidence and arrived at a conclusion that the impugned judgment and decree deserves no interference. However, it transgressed its limits by allowing a remand for adducing fresh evidence, **FAO(RO) 164/2013** **10** which is clearly illegal in the light of the binding precedents. I am of the view that the trial court, even though made an observation that the appeal is devoid of any merit, has not fully considered the evidence in the case and discharged its duty correctly in order to completely decide the question of fixed facts. To establish a grant, oral evidence is not an absolute necessity in all cases. If the terms in a document are clear and unambiguous, such a question can be decided in the light of the documentary evidence produced. The court below did not pronounce a judgment on merits of the case, instead it chose to take a short cut route to remand the case for a flimsy reason. The lower appellate court's judgment is totally unsustainable. 13. The questions of law framed are decided in favour of the appellants in this case. Therefore, the appeal has to be allowed. In the result, the appeal is allowed. The impugned remand order passed by the lower appellate court is set aside. It is hereby directed that the lower appellate court shall consider the matter afresh in the light of the evidence **FAO(RO) 164/2013** **11** available, untrammeled by any of the observations in the impugned judgment, and dispose of the case on merits, as expeditiously as possible, at any rate, within six months from the date of this judgment. The parties shall appear before the lower appellate court on 19.12.2016. All pending interlocutory applications will stand dismissed. JV Sd/- **A. HARIPRASAD JUDGE**