R. Subbiah, J.@mdashThese Appeals have been filed challenging the order of remand dated 29.04.2005 passed by the learned VI Additional Judge, City Civil Court Chennai in A.S. Nos. 154 and 155 of 2003, setting aside the common judgment and decrees dated 11.09.2002 passed by the learned I Assistant Judge, City Civil Court, Chennai, in O.S. Nos. 10549 and 10750 of 1996. The Appellant herein is the Plaintiff in O.S. No. 10750 of 1996 and is the Defendant, in O.S. No. 10549 of 1996. The 1st Respondent herein is the Plaintiff in O.S. No. 10549 of 1996 and is the 1st Defendant in O.S. No. 10750 of 1996. For convenience, the parties will be described as arrayed before the Trial Court in O.S. No. 10750 of 1996.
2. The case of the Plaintiff, in brief, is as follows:
(a) The Plaintiff is the owner of flat. No. ''C'' situated in the north eastern corner at No. 6, Ground Floor, Jawahar Street, Virugambakkam, Chennai-92 together with undivided 410/7260 shares of land bearing Nos. 12 and 13 in S. No. 289/1 in 104, Virugambakkam Village, which was purchased by means of a registered Sale Deed dated 11.12.1991 from A. Manickam, B. Thiagarajan and T. Shanthi represented by their Power of Attorney Holder, the 2nd Defendant, viz., Pugalendhi, marked as Ex.B-1. According to the Plaintiff, the 2nd Defendant had agreed to build the flats in the subject property in pursuance of an agreement entered into with him. Since the 2nd Defendant had delayed the construction beyond the agreed period of 12 months and did not make adequate progress to hand over the possession to the Plaintiff, he filed O.P. No. 1656 of 1993 before the District Consumer Redressal Forum, Chennai, for deficiency of service of the 2nd Defendant, and the said Forum directed the 2nd Defendant to Complete the work within a month apart from awarding damages of Rs. 10,000/-. But the 2nd Defendant did not comply with the same and on the other hand, he filed an Appeal before the State Consumer Forum in A.P. No. 23/96, which was dismissed. Thereafter, the entire work was completed and the Plaintiff took physical possession of the suit property, namely, flat No. C along with undivided 410/7260 shares.
(b) It is the further case of the Plaintiff that he was working in Kalpakkam Atomic Power Project and he had performed house warming ceremony on 19.05.1996 and he was in possession and enjoyment of the suit property. While so, on 28.05.1996, he was informed that the 1st Defendant, tried to break open the lock and he lodged a Complaint with the Inspector of Police, Virugambakkam. Since the defendants were trying to disturb the possession and enjoyment, the Plaintiff filed a Suit in O.S. No. 10750 of 1996 seeking for a permanent injunction restraining the Defendants from interfering with his peaceful possession and enjoyment of the suit property.
(c) According to the 1st Defendant, he had purchased 445/7260 undivided share in the subject land from the Power Agent of the owners of the property i.e. the 2nd Defendant together with a north east corner flat bearing No. ''A'' (according to the Plaintiff, it is flat No. ''C'' at the ground floor. Therefore, the 1st Defendant is a bona fide purchaser of the said flat together with undivided shares in the land and no one can claim title or right whatsoever in the same. According to the 1st Defendant, he is in possession and enjoyment of the suit property. It is the Plaintiff, who attempted to trespass into the suit property claiming that he is the owner of the flat. Hence, the 1st Defendant lodged a Complaint on 27.05.1996 and also filed a Civil Suit in O.S. No. 10549 of 1996 i.e. prior to the Plaintiffs Suit seeking for a permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the Suit property.
(d) The Trial Court tried both the Suits together and framed issues separately and on the side of the Plaintiff, he examined himself as D.W.1 and marked Exs.B-1 to B-20 and on the side of the Defendants, P.Ws. 1 to 3 were examined and Exs.A-1 to A-12 were marked. The Trial Court, after analysing the entire evidence, decreed the Suit filed by the Plaintiff and dismissed the Suit filed by the 1st Defendant. Aggrieved over the same, the 1st Defendant, filed A.S. No. 154 and 155 before the VI Additional Judge, City Civil Court, Madras and the Appellate Court set aside the judgment and decree of the Trial Court and remitted the matters to the Trial Court to give an opportunity to both sides to adduce further evidence and dispose of the matters afresh after appointing an Advocate Commissioner to identify the exact flat, of ''A'' or ''C'' which the Plaintiff and the 1st Defendant is in actual possession. Aggrieved over the said order of remand, the Plaintiff has filed the present Appeals.
3. Learned Counsel appearing for the Plaintiff submitted that the Plaintiff had entered into an agreement, with the 2nd Defendant, for the purchase of a flat, along with the undivided share 410/7260 in the subject, property and was also conveyed to the Plaintiff in and by the Sale Deed dated 11.12.1991 marked as Ex.B-1. The Plaintiff had taken a loan from H.D.F.C. and entered into a construction agreement, with the 2nd Defendant. Since the 2nd Defendant did not complete the construction, he filed a Petition before the District Consumer Redressal Forum Complaining about the deficiency of service of the 2nd Defendant, in the said Petition, a direction was given to the 2nd Defendant to Complete the construction and hand over the same to the Plaintiff and Rs. 10,000/- was awarded for damages. Thereafter the 2nd Defendant filed an Appeal before the State Commission, but the said Appeal was also dismissed. Subsequently, after completion of the construction, the Plaintiff had taken possession of the north eastern corner flat No. C and had also performed a house warming ceremony on 19.05.1996 and he has been in continuous possession and enjoyment of the property. In order to prove the same, the Property Tax Receipt, Tax Assessment Notice, E.B. Deposit Receipt, Receipt for Payment of Water and Sewerage Tax, etc., have been marked on the side of the Plaintiff. But, on the side of the 1st Defendant, no documentary proof was filed to show that he is in enjoyment of the property.
4. By inviting the attention of this Court to Ex.B-17-Mortgage Deed, the learned Counsel for the Plaintiff further submitted that Ex.B-17 is the Mortgage Deed executed in respect of the property purchased by the Plaintiff and that the sketch annexed to the Mortgage Deed would show that the Plaintiff is the owner of north eastern corner of the flat. The Trial Court, after considering the entire evidence, has come to the correct conclusion that the Plaintiff is in possession of the north eastern corner flat No. C. Therefore, the question of remanding the matters to the Trial Court, once again for adducing fresh evidence does not arise and the Appellate Court should not have remanded the matters merely for the purpose of adducing further evidence, particularly when sufficient, evidence was available on record to decide the case. In support of his submissions, the learned Counsel relied on the decisions reported in the case of
5. Per contra, the learned Counsel for the 1st Defendant submitted that, it is incorrect to state that sufficient materials were produced by the Plaintiff before the Trial Court to prove his case. Further, by inviting the attention of this Court to the Sale Deed marked as Ex.B-1 on the aide of the Plaintiff, the learned Counsel submitted that the Sale Deed did not contain any sketch, but the Trial Court has come to an erroneous conclusion as if an approved plan appended with Ex.B-1, which would show that the Trial Court, without proper application of mind, has decreed the Suit. In this regard, the learned Counsel further submitted that the 1st Defendant, on an earlier occasion, filed a Suit as against the promoter, the 2nd Defendant, in O.S. No. 871 of 1995 when he came to know that the 2nd Defendant was making an attempt to sell the property to one Gandhirajan, the 3rd Defendant. In the said Suit, an Advocate Commissioner was appointed and he filed the report and sketch of the subject property marked as Ex.A-7, which would show that, the 1st Defendant is the owner of north east corner flat ''A''. Moreover, the 1st Defendant, submitted that in the plan annexed along with the Mortgage Deed executed by the Plaintiff marked as Ex.B-17, no direction was given. Under such circumstances, the contention of the Plaintiff that the plan annexed with the Mortgage Deed would show that he is the owner of the north east flat cannot be accepted. Moreover, the 2nd Defendant, who is the competent person to speak about the handing over of the subject flat, remained ex-parte before the Trial Court. Therefore, there is an ambiguity with regard to the identification of the flat in question. Under such circumstances, no fault could be found in the order of remand passed by the Appellate Court. In support of his contention, the learned Counsel for the 1st Defendant relied on the decisions in
6. Heard the learned Counsel for both sides.
7. It is not in dispute by both sides that, both parties have purchased the undivided shares in the subject property. According to the Plaintiff, he had purchased 410/7260 undivided shares along with the flat, in the north east corner to the extent of 410 sq.ft., whereas, according to the 1st Defendant, he had purchased 445 sq.ft. with undivided share 445/7260 along with a flat of 445 sq.ft. Both of them are claiming that what was conveyed to them by promoter was only the north eastern corner flat. According to Plaintiff, the north-east flat is ''C'' and according to the 1st Defendant is ''A''. But, the 2nd Defendant-promoter, who is competent person to speak about the handing over of flat did appear before the Trial Court and he remained ex-parte. But the Trial Court, based on the Municipal Tax Receipts, ''Grahapravesam'' Invitation, Water and Sewerage Tax Receipt, Property Tax Receipt, etc. marked on the side of the Plaintiff, has come to the conclusion that the Plaintiff is in possession of the property. But the Appellate Court has set aside the said finding on a reasoning that since both of them were claiming that they are the owners of north east flat, it would be appropriate to appoint an Advocate Commissioner to inspect the suit property and locate the flat whether it is situate in the north western corner because the measurements are very important to decide the issue. But the learned Counsel for the Plaintiff submitted that the Advocate Commissioner cannot be appointed to find out the fact that who is in possession of the property.
8. On a perusal of the Appellate Court judgment, I find that the purpose for appointing an Advocate Commissioner was not for finding out as to who is in possession of the property and on the other hand, only to locate the flat whether it is ''A'' or ''C'' situated on the north eastern corner since the measurements are very important to decide the issue. It is necessary to extract the relevant paragraph, which reads as follows:
22. In the aforesaid reasons, the judgment and decree of the Trial Court is set aside and the matter is remanded back to the Trial Court, to give an opportunity to both sides to adduce further evidence if any and it is open to the parties to take steps for appointment of an Advocate Commissioner to locate the exact flat-A or C in which the Appellant or the 1st Respondent who is in actual possession and dispose the matter in accordance with law...
9. Though the learned Counsel for the Plaintiff relied on a sketch annexed to the Mortgage Deed Ex.B-17 and similarly the learned Counsel for the 1st Defendant, relied upon the plan annexed along with the Advocate Commissioner''s Report filed in O.S. No. 871 of 1995, which is marked as Ex.A-7, the said sketches are not clear to decide the issue involved in this Appeal, particularly in the absence of exact description of the property in the Sale Agreements entered into between the respective parties with the promoter and also in the absence of sketch annexed to the Sale Deed. Therefore, I am of the opinion that the appointment of Advocate Commissioner cannot be said to be unwarranted in this case, particularly in the circumstances, when, according to the Plaintiff, the flat is only 410 sq.ft and according to the 1st Defendant, it is 445 sq.ft. But, for appointing an Advocate Commissioner to locate the exact flat A or C, whether the remand is necessary or not, is the question involved in these Appeals. In this regard, an useful reference could be placed on the judgments relied on by the learned Counsel for the Plaintiff. In
It was a settled position of law before the 1976 Amendment that the Court, in an appropriate case could exercise its inherent jurisdiction u/s 151, C.P.C. to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41, C.P.C. In cases where additional evidence is required to be taken in the event of any one of the clauses of sub-rule (1) of Rule 27, being attracted, such additional evidence, oral or documentary is allowed to be produced either before the Appellate Court itself or by directing any Court subordinate to the Appellate Court to receive such evidence and send it to the Appellate Court. In 1976, Rule 23-A has been inserted in Order 41, which provides for a remand by an Appellate Court hearing an Appeal against a decree if (i) the Trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in Appeal and a retrial is considered necessary. On twin conditions being satisfied, the Appellate Court can exercise the same power of remand under Rule 23-A, as under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these Rules, the High Court cannot have recourse to its inherent, powers to make a remand. It is only in exceptional cases where the Court may now exercise the power of remand dehors Rules 23 and 23-A. To wit the superior Court, if it finds that the judgment under Appeal has not disposed of the case satisfactorily in the manner required by Order 20, Rule 3, or Order 41, Rule 31, C.P.C. and hence it is no judgment, in the eye of the law, it may set aside the same and send the matter back for rewriting the judgment so as to protect valuable rights of the parties. An Appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25, C.P.C. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.
10. In
11. In
...when the provisions under Order 41, Rules 23 to 29 of C.P.C. are not a bar to take further evidence or to appoint a Commissioner, if so necessary and to try the Appeal, there is no necessity to remand the matter back to the Trial Court and the Lower Appellate Court itself can try the matter after taking further evidence.
12. Per contra, the learned Counsel for the 1st Defendant relied upon a judgment reported in
As a general rule, it is undesirable to remand a case merely in order to give an opportunity to both parties to adduce evidence which might and ought to have been put before the Trial Court; and there is a clear danger that such a remand order may in effect be a invitation to perjury.
13. In The assumption that an Appeal under Order 43, Rule 1, Clause (u) should be heard only on the grounds enumerated in Section 100 is incorrect. Order 43, Rule 1, C.P.C. is only an enabling provision for regulating the procedure and prescribing the various orders from which Appeal would lie to an higher Court. A Rule prescribing the procedure can never be understood in law as circumscribing the powers of the higher Court hearing the matter in Appeal unless the Rule specifically speaks of it. Where an order of remand is questioned as being improper and uncalled for in an Appeal provided against such an order, it would be always open to the Court hearing the Appeal to consider all questions, both of fact and law, to determine whether or not the order of remand is right in law. For the reasons stated above, both the Civil Miscellaneous Appeals are allowed and the common judgment and decrees of the Lower Appellate Court are set aside and the Lower Appellate Court is directed to dispose of the Appeals, as stated supra, within a period of two months from the date of receipt of a copy of this judgment. No costs. Consequently, connected C.M.Ps. are closed.
