Civil P.C. 1908 – O. 41 R. 23A – Remand – Invocation of power under – twin conditions – 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. If only these two conditions are satisfied, a remand under Order XLI Rule 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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. HARIPRASAD, J.
F.A.O. (R.O.)No.341 of 2014
Dated this the 20th day of July, 2016
AGAINST THE JUDGMENT IN A.S. 51/2012 of SUB COURT, PALA DATED 27-10-2014 AGAINST JUDGMENT IN O.S.NO.21/2010 OF THE COURT OF MUNSIFF,PALA
JOHN V. AUGUSTINE
BY ADV. SRI.M.NARENDRA KUMAR
RESPONDENT(S)/APPELLANTS & 2ND RESPONDENT/DEFENDANTS
M.R. RENJAN AND 4 OTHERS
R1-R4 BY ADV. SRI.G.SREEKUMAR (CHELUR) R5 BY ADV. SRI.P.S.GEORGE SRI.K.C.VINCENTS
Plaintiff in O.S.No.21/2010 before the Court of Munsiff, Pala, a suit for injunction simplicitor, is the appellant. He challenges the lower appellate court’s judgment and decree, whereby the decree in the suit was set aside and the matter was remanded to the trial court for jointly trying with another suit pending before it.
2. For clarity of expression, the parties are hereinafter referred to as the “plaintiff” and “defendants”. The suit was decreed by the trial court, granting a permanent prohibitory injunction decree, restraining the defendants from trespassing into the plaint item Nos.1 and 2 properties and from using any portion of the said properties as a pathway.
3. In the appeal, the lower appellate court found that O.S.No.18 of 2010 pending before the trial court should have been tried with this case. It further found that the defendants suffered prejudice on account of the fact that the suits were not tried together.
4. Subject matter in these two suits is said to be a pathway. According to the plaintiff, there is a public pathway running through the plaint item No.3, lying on the southern side of plaint item No.1 and 2. Plaint item No.3 belongs to the defendants. Per contra, the defendants contended that the public pathway is running thorough the plaintiff’s property.
5. It is contended by the plaintiff that, a pathway originating from a public road on the western side of the plaint item No.1 and 2 passes through the northern side of the first defendant’s property and it reaches on the bank of a water channel. There is a small bridge provided for crossing the water channel towards east and the way then proceeds further. The plaintiff further contended that, this way is a public way. The defendants are trying to shift the way to the northern side, so as to save their property and to grab a portion of the plaintiff’s land for using as a public way.
6. First defendant contended that the plaintiff attempted to block the public way running through the southern portion of his property. Hence, a suit under
Section 91 of the Code of Civil Procedure, 1908
(the Code, for short) has been filed seeking a permanent prohibitory injunction against the plaintiff and it is pending as O.S.No.18 of 2010.
7. It is an admitted fact that, at the time when this suit was heard and disposed of, O.S.No.18/2010 was pending. Learned counsel for the plaintiff contended that an application under Section 151 of the Code for joint trial was filed by the plaintiff before the trial court. It was dismissed by the court as the defendants stiffly opposed the petition. Countering the application, they contended that all the parties in O.S.No.21/2010 are not parties to O.S.No.18/2010. They further contended that the nature of reliefs claimed in both the suits are different. However, the joint trial application was dismissed by the trial court after hearing both sides. The question then arises for consideration is, whether remand of the case for joint trial at the instance of the defendants is legally allowable, that too without considering the legal principles?
8. Heard Sri.M.Narendra Kumar, the learned Counsel appearing for the plaintiff and Sri.G. Sreekumar the learned Counsel appearing for the defendents.
9. Sri.Narendra Kumar contended that the remand order is unsustainable, both on facts and law. According to him, the plaintiff, with all earnestness, attempted to get the suits jointly tried. However, that was strongly opposed by the defendants and they got the application dismissed. Thereafter, when the suit was decreed, they raised a ground before the lower appellate court that, the trial court should have tried these two suits jointly. According to Sri.Narendra Kumar, they are estopped from raising such a grievance before the lower appellate court.
10. Controverting this argument, Sri.G. Sreekumar submitted that, it was an unwise decision on the part of the defendants to oppose the joint trial application. Nonetheless, it may not legally preclude the court from allowing it, if it was required in the interest of justice. According to Sri.G.Sreekumar, some common questions of fact and law arise in these cases and ideally they should have been jointly tried. It is further submitted by him that, a specific ground was taken in the appeal memorandum before the lower appellate court pointing out the miscarriage of justice resulted by trying the suits separately.
11. It is true that, the defendants opposed the application filed by the plaintiff for joint trial of O.S.No.18/2010 with O.S.No.21/2010. It is conceded by both sides that the application was filed on the eve of the trial. That would have been a prominent reason to disallow the application. By no streach of reasoning, it can be found that the opposition offered by the defendants was justifiable. But, in a given case, if such an order is essential for the ends of justice and for adjudicating the whole issues between the parties, the court is not powerless to order a joint trial.
12. Now, I shall consider the legality of the impugned judgment making a remand. Order XLI Rules 23, 23-A and 25 of the Code are the provisions governing the appellate court’s power to remand a case. Powers under Order XLI Rule 23 of the Code arises, where a court from whose decree an appeal is preferred, has disposed of the suit upon a preliminary point and where the appellate court decides to reverse the decree. In the case on hand, such a situation does not arise.
13. Power vested in an appellate court under Rule 25 of Order XLI of the Code could be exercised if it finds that the trial court has omitted to frame or try any issue or to determine any question of fact, which is essential to the right decision of the suit upon merits. In that case, the appellate court may, if necessary, frame issues and refer the same to the trial court from whose decree the appeal is preferred. After taking additional evidence, as directed by the court, the trial court shall return the evidence to the appellate court together with its findings thereon and the reasons therefore. That type of a remand is not involved in this case.
14. The legal provision applicable to this case is one under Order XLI Rule 23-A of the Code. It reads as follows: