V. Palanisamy Gounder vs M. Mohammed Rafi

T. Raja, J

The appeal has been directed against the impugned judgment and decree dated 10.12.2011 passed in A.S. No.73 of 2011 by the Principal Subordinate Judge, Coimbatore reversing the judgment and decree dated 07.12.2010 passed in O.S. No.1588 of 2006 by the III Additional District Munsif Court, Coimbatore.

Learned counsel appearing for the appellant/defendant, assailing the reasons given by the Appellate Court, submitted that when there was no request or application made by the plaintiff, the Appellate Court ought not to have simply remanded the matter back to the Trial Court to appoint an Advocate Commissioner to note down the physical features and measurement of the east west wall between the plaintiff and the defendant's property as per Ex.A2 final decree that would lead the plaintiff to collect more evidence in his favour. Adding further, it is contended by the learned counsel appearing for the appellant that when the plaintiff miserably failed to move an application or petition before the Trial Court for appointment of Advocate Commissioner for inspecting the physical features of the properties, the Appellate Court should not have directed the Trial Court to appoint an Advocate Commissioner and send the same to its file for expeditious disposal so that the controversy raised in the suit filed way back in 2006 could be disposed of. Therefore, the order of remand directing the Trial Court to appoint an Advocate Commissioner is unwarranted.

Learned counsel appearing for the appellant would contend that the Appellate Court should have appointed an Advocate Commissioner by itself, without remanding the matter back to the Trial Court. Taking support from the judgment dated 30.08.1996 passed by this Court in C.M.A. No.604 of 1991 in the case of Poolar vs. Gomathi Moopanar and two others reported in 1996 (2) CTC 539, would submit that the proposition that the order of remand should not be to fill up the lacunae of the case of the party and the lacunae, if in fact, is present, can be rectified by the Appellate Court itself, unless there are very compelling circumstances to make an order of remand and an order of remand should not be taken to be matter of course on the above ground and the power of remand should be sparingly exercised and there should be always endeavour to dispose of the case by the Appellate Court itself, when the commissions and omissions made the first Court could be corrected by the Appellate Court. In the light of the above principle, the learned counsel for the appellant sought to allow the Appeal by setting aside the matter with a direction to the Appellate court to re-hear the matter and dispose of the Appeal.

Learned counsel appearing for the respondent submitted that it is no doubt true that if there is any error committed by the Trial Court, the same cannot be taken as a seal for the Appellate Court to avoid the hearing of the first appeal for its disposal. When there are serious mistakes committed by the Trial Court, it is always permissible for the Appellate Court to remand the matter back to the Trial Court in the best interests of the parties. In the present case, the matter was correctly remanded back to the Trial Court by the First Appellate Court for the reason that the Trial Court without properly appreciating the oral and documentary evidence in terms of Ex.A2 final decree, dismissed the suit filed by the plaintiff which is factually and legally incorrect and therefore, the Trial Court is required to undertake fresh exercise. Therefore, the order of remand passed by the Appellate Court is fully justified. Hence, the appeal deserves to be dismissed without calling for any interference with the impugned judgment and decree of the Appellate Court.

Learned counsel appearing for the appellant would fairly submit that the direction given in the final decree has not been looked into by the Trial Court.

I also find merits on the submission made by the learned counsel appearing for the respondent. When Ex.A2 final decree was a crucial document to be looked into by the Trial Court, the same has not been done by the Trial Court. Therefore, I do not find any error in the impugned decretal order passed by the Appellate Court. Accordingly, the appeal stands disposed of directing the Trial Court to look into the matter afresh, after appointing an Advocate Commissioner, who will inspect the physical features of the present East West wall position and measurements between the plaintiff and the defendant. The Trial Court shall also look into the final decree marked as Ex.A2 and dispose of the suit preferably within a period of six months from the date of receipt of a copy of this judgment. The parties are directed to co-operate for the early disposal of the suit since the suit was filed in the year 2006. No costs. Consequently, M.P. No.1 of 2012 is closed.