TMI Blog2016 (12) TMI 1786X X X X Extracts X X X X X X X X Extracts X X X X ..... sayee, J. For Appellant: V. Bhiman For Respondents: D. Ravichander for T.R. Rajaraman JUDGMENT N. Seshasayee, 1. This Civil Miscellaneous Appeal is preferred against the order of remand made by the learned Sub-ordinate Judge, Gingee dated 29.06.2009 made in A.S. No. 30 of 2006 reversing the decree/judgment in O.S. No. 551 of 1998 dated 30.06.2005 on the file of the Additional District Munsif Court, Gingee. 2. The defendant in O.S. No. 551 of 1998 on the file of the Additional District Munsif Court, Gingee/the respondent in A.S. No. 30 of 2006 on the file of the Sub-ordinate Judge, Gingee, has come forward with this miscellaneous Appeal, challenging the order of the First Appellate Court remanding the matter back to the Trial Court. The parties would be referred to as per their rank before the Trial Court for narrative convenience. 3. The plaintiff has filed a suit for declaration of title and for recovery of possession with mesne profits. She would allege in her plaint that the suit property originally belonged to her husband Kuppusamygounder, that he had obtained the same partly by inheritance and partly by p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delivering judgment, the above mentioned two issues which are pertinent in a suit for declaration of title, were deleted and instead the following issue was framed as the first issue:- Whether the plaintiff is in possession and enjoyment of a suit property? 7. As earlier indicated, the trial Court dismissed the suit and in arriving at its conclusion it believed the validity of the sale deed under which the defendant claimed title. Here, the trial Court spotlighted more on plaintiff's failure to cross-examine DW-1, the defendant. It also relied on Ext. B-5, under which the plaintiff, her husband and children have sold the property to Manikandan pendente lite and touching on it, it entered a finding that inasmuch as the plaintiff had sold the property to a third party the suit itself has become infructuous. 8. Challenging the decree of the trial Court, the plaintiff preferred A.S. No. 30/2006. In that appeal, plaintiff filed I.A. No. 23 of 2009 under Order XLI Rule 27 CPC to permit the plaintiff to cross-examine D.W-1. The first appellate Court found that not only DW-1 was not cross-examined by the plaintiff, but PW-3 was also not cross-examined by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely on the weakness of defendant's case to gain an advantage. The instant suit is one instituted by the plaintiff and she claims title to the suit property on the basis of a settlement deed that her husband had executed in her favour in 1973. The defendant admittedly claims title to the same property on the basis of a sale deed executed by the very husband of the plaintiff who the latter alleges as the executant of the settlement deed in her favour. Necessarily if the question plaintiff's title is be investigated then the validity of the alleged settlement deed (marked Ext. A-2) becomes the crucial issue. Now, without entering a discussion on this fact and understanding the nature and extent of right that the plaintiff claimed to have derived under the settlement deed, the trial Court deviated from the track and dropped an issue critical for deciding the title of the plaintiff and instead came up with a surprise when it framed an issue concerning plaintiff's possession of the suit property, when the plaintiff herself has admitted in the plaint that she was not in possession and that the defendant had entered possession. Indeed, it is on this specific pleading that she h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. Before embarking on the correctness or otherwise of the approach of the first appellate court in remanding the matter it is necessary to remember that the Supreme Court in P. Purushottam Reddy v. Pratap Steels Ltd., [AIR 2002 SC 771] has declared that ..An unwarranted order of remand gives the litigation an undeserved lease of life and therefore, must be avoided . An order of remand in essence contributes to what may be termed as a recycle-bin syndrome as it leaves the same case rotating within the system without an exit, and stagnates if not adds to the burden that the legal system shoulders. Reference may be had to the authority of the Supreme Court in Lisamma Antony v. Karthiyayani (2015) 11 SCC 782]. It is therefore necessary that an appellate court should resort to remanding of cases to the court below only sparingly and in exceptional cases. In this context principles governing the question of remand may be broadly stated: An appellate court must ascertain if the suit is decided on a preliminary point. Here the appellate Court should be cautious not to misconstrue a preliminary point with preliminary issue under Order XIV Rule 2 CPC. Ordinarily, a suit is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al defect within the meaning of Order XXIII Rule 1 CPC or production of a new evidence subject to the limitations in Order XLI Rule 27 CPC, both of which may be of such nature that they are either inconsistent with any fact in issue or relevant fact already proved, or, which either by itself or in connection with other facts available on record make the existence or non-existence of any proved fact in issue or relevant fact highly improbable and hence require proof; These are only illustrative and not exhaustive. A remand should not be made to reconstruct a case, but only to prevent failure of justice. A litigant's recalcitrance and default cannot not be counted as a ground per se to remand. A remand is not required merely because of change of substantive law or advent of new law affecting the original cause of action, unless it also requires addition of parties or probe on facts. The bottom line is, can the case be finally decided on all material points in controversy without an order of remand? If it can be then there is no need for ordering remand of a case. In all cases, it is necessary for the appellate court to give reasons for the course i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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