R. Subbiah, J.@mdashThis appeal arises out of the order of remand dated22.10.2010 passed by the learned Principal District Judge, Erode, in A.S. No. 16 of 2010, whereby the judgment and decree dated 24.10.2009 passed by the learned II Additional Subordinate Judge, Erode, were set aside and the matter was remanded to the trial court for fresh disposal. The Appellant herein is the Plaintiff and Respondents 1 to 3herein are Defendants 5 to 7 and Respondents 4 to 7 are Defendants 1 to 4 before the trial court.
2. The circumstances, which led the Appellant/Plaintiff to file the present appeal, are as follows:
(a) The Plaintiff filed the suit for partition and separate possession of her 1/3rd share in the suit properties. The suit properties belonged to one Muthusamy Gounder, who died intestate on 30.03.2003,leaving his wife Chinnammal, who also died intestateon 18.12.2004 and they had no issues. Ramasamy Gounderis the brother of Muthusamy Gounder and he had one son Raju and two daughters Ammaniammal and Sampoornam (the Plaintiff). The said Raju also died on 04.07.2002leaving behind him his wife Ramayee, Kathirvel and Easwaran. The relationship of the parties can be easily understood from the following genealogy table:
The Plaintiff filed the suit as against the wife and children of deceased Raju Gounder describing them as Defendants 1 to 3 and also daughter of deceased Ammaniammal as the 4th Defendant. Since Defendants 1 to 4 are evading partition and Defendants 5 to 7 are making a false claim that the deceased Chinnammal, wife of Muthusamy Gounder, had executed a Will in their favour, the Plaintiff filed the suit.
(b) The said suit was contested by Defendants 5 to 7 stating that the suit was filed in collusion of agnate Defendants 1 to 3. During the life time of Muthusamy Gounder, he executed a power of attorney in favour of the 7th Defendant to initiate eviction proceedings against the 2nd Defendant from item 2 of the suit properties and he also filed RCOP No. 26 of2002 before the I Additional District Munsif Court,Erode. Thereafter, the said Muthusamy Gounder died and after his death, Chinnammal executed a power of attorney in favour of the 7th Defendant and on the basis of which, the 7th Defendant filed eviction petition in RCOP No. 1 of 2004 and during the pendency of the rent control petition, Chinnammal also died.In fact, Chinnammal, while in sound state of mind,during her last days, executed a Will in favour of Defendants 5 to 7 and after her death, Defendants 5 to7 became the absolute owners of the suit properties and other properties mentioned in the Will. Defendants2 and 3, who are occupying item 2 of the suit properties as tenants, refused to pay rent and also refused to vacate the premises even during the lifetime of Muthusamy Gounder with a view to squat on the property even without paying the rent. The present suit has been filed by the Plaintiff only to prevent Defendants 5 to 7 from evicting Defendants 2 and 3from the 2nd item of the suit properties, in collusion with Defendants 1 to 3, and thus, they prayed for the 5 dismissal of the suit.
(c) Before the trial court, on the side of thePlaintiff, P. Ws.1 to 3 were examined and Exs.A-1 andA-2 were marked and on the side of the Defendants,D. Ws.1 to 3 were examined and Exs.B-1 to B-8 weremarked. The trial court, on consideration of entire evidence, granted a preliminary decree in favour of the Plaintiff. Aggrieved over the same, Defendants 5to 7 filed an appeal before the Principal District Court, Erode, in A.S. No. 16 of 2010 along with I.A. No. 48 of 2010 to receive the documents as evidence, stating that at the instance of Muthusami Gounder, the 7th Defendant filed a rent control proceedings against the 2nd Defendant and after the demise of Muthusamy Gounder, his wife Chinnammal executed a power of attorney in favour of the 7th Defendant and pending the rent control proceedings, Chinnammal died and hence, Defendants 5 to 7 filed an application to implead themselves as parties in the said rent control petition, which was allowed. Against which, the 2nd Defendant Eswaran preferred an appeal and the same was allowed. Hence, these Defendants preferred CRP No. 1678 of 2007 before this Court, which was allowed, permitting the parties to adduce evidence to prove the Will. The Will has also been produced before the Rent Controller. At that time, the present suit was filed by the Plaintiff and the same was dismissed for default on 05.07.2006. Subsequently, the suit was restored to file on 14.10.2008. They were not in a position to produce the original Will in the suit and hence, they produced the xerox copy of the Will.But, the trial court has dismissed the suit based on the non-production of the original Will. Therefore, they filed the interim application to receive the original will as additional document.
(d) The said petition was vehemently opposed by the Plaintiff. The lower appellate court, rejecting the objection raised by the Plaintiff, set aside the judgment and decree of the trial court and remanded the matter to the trial court for the purpose of marking the Will on a reasoning that the original Will has to be marked directly, so that an opportunity must be given to the other side to cross examine with regard to the same. Aggrieved over the order of remand, the present appeal has been filed by the Plaintiff.
3. Learned Counsel appearing on behalf of the Appellant/Plaintiff would submit that as a routine, the order of remand cannot be ordered. The additional evidence could be received in the appellate stage only if the party seeking to produce the evidence failed to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. But, here, such a situation does not arise. Therefore, receiving the additional evidence and remanding the matter do notarise.
4. Per contra, the learned Counsel for Respondents 1to 3/Defendants 1 to 3, by relying upon the decisions reported in
5. By way of reply, the learned Counsel for the Appellant/Plaintiff relied on the decision reported in Kanakayya v. Lakshmayya AIR (38) 1951 MADRAS 218 and submitted that a right of appeal is a substantial right; even if the evidence is recorded during the pendency of the appeal, once if the order of the lower appellate court isset aside, the entire proceedings that had taken place before the trial court during the pendency of the appeal, will ipso facto cease to have any force.
6. Keeping in view the above submissions and after going through the materials available on record, I find that the lower appellate court has remanded the matter for the purpose of marking the Will filed in the interim application along with the appeal, by examining the witnesses and after affording an opportunity to the parties to let in additional evidence. In my considered opinion, for the purpose of marking a document through a witness, remand is not necessary. It is a well settled principle that an appeal is a continuation of the original proceedings. Under such circumstances, the lower appellate court itself can record the evidence by permitting Respondents 1 to 3 herein to mark the document and also by affording an opportunity to the Appellant herein to cross-examine the witnesses. In this regard, a reference could be placed on the judgments relied on by the Appellant reported in H.P. Vedavyasachar v. Shivashankara and Anr. CDJ 2009 SC 1594, which reads as follows:
Such an order of remand could be only interms of Order XLI Rule 23, Order XLI Rule 23A or Order XLI Rule 25 of the Code. None of the said provisions have any application in the instant case.
7. In yet another case reported in Arockia Prakash v. Rangasamy CDJ 2007 MHC 1639, it has been observed asfollows:
The catena of judgments reiterate the following principles of law that the order of remand cannot be passed by the Appellate Court as a matter of course. Remand is permissible only when the Appellate Court in the interest of justice feels that the remand is just and appropriate and that the Appellate Court should arrive at a specific finding on the materials available on record that the judgment of the Trial Court is erroneous and liable to be set aside, which is a conditional precedent. The Appellate Court should not remand the case on the ground that the evidence is not properly assessed. Order of remand should not be made when the defect in the proceeding has been due to negligence or default of the party, who will benefit by the remand. The order of remand should not be made to fill up a lacuna by allowing the party to adduce evidence. It it is possible for the Appellate Court to evaluate the oral and documentary evidence, then it is not open to the Appellate Court to come to the aid of the parties to fill up the lacuna in the evidence. If material particulars are available, the Appellate Court itself should decide the matter one way or the other. Remanding the matter for fresh adjudication gives the litigation a fresh lease of life in the protraction of proceedings.
8. From the judgments relied on by the learned Counsel for the Appellant, it is clear that the order of remand could be made only in terms of Order 41 Rule 23 CPC But, I find that none of the terms of Order 41 Rule 23 CPC is available in the present case. Under such circumstances, the judgments relied on by the learned Counsel for the Appellant are not applicable to the facts of this case.
9. With regard to the other submission made on behalf of the Appellant that when D.W.1 was examined after remand, there is no need to set aside the order of remand, I am of the opinion that filing of an appeal, is as tatutory right provided to the litigants. Even if evidence is recorded during the pendency of the appeal by the court below and once the order of remand passed by the lower appellate court is set aside by allowing the appeal, the entire proceedings that took place before the trial court during the pendency of the appeal, would also cease to have operation or legal effect. In this regard, a reference could be placed on the decision relied on by the learned Counsel for the Appellant in Kota Kanakayya and Anr. v. Kamepalli Lakshmayya and Ors. AIR (38) 1951 Mad 218, which reads as follows:
3. The Civil P.C. of 1908 not only gives anaggrieved party a right of appeal against apreliminary decree or an order of remand in a case where the decree of the appellate Court would have been open to appeal but also imposes this serious disability on a litigant that if be does not prefer an appeal against the preliminary decree or an order of remand, he is thereafter precluded from disputing its correctness in an appeal from the final decree. There is no provision anywhere in the Code that takesaway the right of a party to appeal from apreliminary decree or an order of remand, if a final decree happens to be passed in the suit before the appeal against the preliminary decree or the order of remand is presented. Nor is there any provision in the Code that an appeal against a preliminary decree or an order of remand properly presented becomes defunct by the passing of a final decree pending the appeal. I am unable to accept the dictum of Mack J.that "it is necessary that these wide privileges of appeal should be exercised within the limits of reason and practicality", the limits being, evidently, those prescribed by learned Judges according to their own notions of what is reasonable or practical. In my opinion, it is not legitimate for a Court to read into the statutory provisions granting a right of appeal, limitations and disabilities which the legislature has not thought fit to insert. Abrogation of a right of appeal given by statute cannot be imported by Courts for reasons founded on practical convenience. A right of appeal which is a substantial right conferred by statute, is not to be put in peril merely because the purpose of granting a right of appeal does not appeal to the predilection of the Court. Mack J. observes that "the cycles of appeals, the law permits in India, have(sic) no parallel in the juristic history of any other country." I am not so sure about this but in any case, it is a problem for the legislature and as not to be solved by judicial abrogation of rights conferred by statutory enactments.
10. A reading of the said judgments would show that aright of appeal which is a substantial right conferred by statute, is not to be put in peril merely because during the pendency of the appeal, the trial court has proceeded with the matter partly. Once if the order is set aside, the proceedings so far had taken place before the court below, will ipso facto cease to have force. Therefore, I am not inclined to accept the submissions made by the learned Counsel for the Appellant in this regard.
11. For the reasons stated above, I hold that the order of remand is not maintainable and the remand order passed by the lower appellate court is liable to be set aside and accordingly, the same is set aside. The lower appellate court is directed to take up the appeal and permit Respondents 1 to 3 to mark the additional documents, by examining the witnesses and affording an opportunity to the Appellant herein to cross examine the witnesses, and decide the case afresh in the appeal once for all. The civil miscellaneous appeal is allowed. No costs. Consequently, connected M.P.is closed.
