Appeal against remand order in partition suit involving disputed Will. Single judge of High Court of Kerala held that remand is impermissible when evidence on record is sufficient for appellate court to decide issues.
Remand order set aside; First Appellate Court to consider and adjudicate all issues.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 28th DAY OF SEPTEMBER 2021 / 6TH ASWINA, 1943
FAO (RO) NO. 12 OF 2021
AGAINST THE JUDGMENT DATED 29.02.2020 IN AS 21/2013 OF SUB COURT,
TIRUR, MALAPPURAM
JUDGMENT DATED 29.01.2013 IN O.S.No.218/2010 OF THE MUNSIFF-
MAGISTRATE COURT, PONNANI
APPELLANT/1st RESPONDENT/1 st PLAINTIFF:
VINNAMCHATHAYIL KUTTAN, AGED 73 YEARS, S/o KRISHNAN, EZHUVATHIRUTHI AMSOM, PUNNATHIRUTHI DESOM, PONNANI TALUK, MALAPPURAM DISTRICT-679586.
BY ADVS.JAMSHEED HAFIZ
SMT.K.K.NESNA
RESPONDENTS/APPELLANTS & RESPONDENTS 3 TO 6/DEFENDATS & 3rd PLAINTIFF:
1 VINNAMCHATHAYIL CHANDRAN, AGED 68 YEARS, S/o KRISHNAN, EZHUVATHIRUTHI AMSOM, PUNNATHIRUTHI DESOM, PONNANI TALUK, MALAPPURAM DISTRICT-679586.
FAO (RO) No.12 of 2021
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5 JANAKI, AGED 63 YEARS, W/o LATE VINNAMCHATHAYIL GOPALAN, VINNAMCHATHAYIL HOUSE, RAYIRIMANGALAM AMSOM DESOM, NEAR SOBHA PARAMB, TANUR PO, TIRUR TALUK, MALAPPURAM DISTRICT-676302.
6 SIMI, AGED 41 YEARS, D/o LATE VINNAMCHATHAYIL GOPALAN, VINNAMCHATHAYIL HOUSE, RAYIRIMANGALAM AMSOM DESOM, NEAR SOBHA PARAMB, TANUR PO, TIRUR TALUK, MALAPPURAM DISTRICT-676302.
7 SHIJU, AGED 35 YEARS, S/o LATE VINNAMCHATHAYIL GOPALAN, VINNAMCHATHAYIL HOUSE, RAYIRIMANGALAM AMSOM DESOM, NEAR SOBHA PARAMB, TANUR PO, TIRUR TALUK, MALAPPURAM DISTRICT-676302.
R1 TO R3 BY ADVS.SRI. K.P.PRADEEP
SMT.T.THASMI R5 TO R7 BY ADVS. SHRI.NIRMAL.S
SMT.VEENA HARI
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 28.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
FAO (RO) No.12 of 2021
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JUDGMENT
The plaintiff came up against the order of remand of
the First Appellate Court in a suit for partition. The trial court decreed the suit passing a preliminary decree for partition rejecting a Will claimed by the defendants 1
to 3. One of the attesting witnesses to the Will was examined in order to prove the due execution of the Will as DW1. He is an Advocate Clerk. His statement reveals that he had seen the affixture of signature by the testator, but stated that the Will was signed by the first witness Manikandan at first and thereafter he affixed his signature as a witness to the document. But in the Will there is no witness with the name Manikandan. It is one Krishnakumar who signed the Will. Further, the Will reveals that the first attesting witness is none else, the DW1. The First Appellate Court found that it is only a mistake, but
remanded the matter back to the trial court for
adjudicating all these issues. It is totally against the mandate under Order 41 Rule 24 CPC. When the parties have adduced evidence fully knowing the dispute involved in the
FAO (RO) No.12 of 2021 4
suit, it is mandatory that the Appellate Court should consider and decide the issues, for which a remand of the case back to the trial court is not permissible. It would constitute a substantial question of law for this appeal. A remand is possible only when the court is satisfied that the party did not aware of the actual issue involved in the suit and no evidence was tendered in that behalf. This court has laid down the legal position in FAO (RO)
No.14/2021, dated 24.09.2021 (given for reporting). Paragraph 4 of the said judgment is extracted below for reference.
“4. A conjoint reading of Rule 23, 23A and 24 of Order XLI C.P.C. would make it clear that non-consideration, failure or mis-appreciation of an issue may not be a ground to order remand of the case, when the evidence on record is sufficient for determination of the issue by the appellate court. It is within the permissibility of the first appellate court to take up and consider every issue in dispute and to determine the same when evidence on record is sufficient for its adjudication, irrespective of whether it was taken up or answered by the trial court. In short, a
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FAO (RO) No.12 of 2021
remand of the case to the trial court is not permissible, when the evidence on record covers the material for adjudication of every issues involved in the suit. It is also within the jurisdiction of the appellate court to settle and decide any issue, which is essential for fair determination of the dispute involved, when evidence on record is sufficient. The expression "evidence upon the record is sufficient" incorporated in Rule 24 shall not be understood to cover any failure upon the party to tender any evidence, insufficiency of evidence or any laches thereof so as to bring the matter within the purview of that Rule, when the party is aware of the dispute involved and the nature of issues to be adjudged. Hence, a remand of the case, either to fill up the lacuna in the evidence or in the case set up or failure to adduce evidence cannot be a ground of remand, when the dispute was within the knowledge of the parties and proceeded or defended with the suit with that knowledge. But, when there is denial of sufficient opportunity to adduce evidence resulting in grave injustice to the party, it is permissible to order remand of the case.”
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Appellate Court cannot be sustained and hence set aside. The First Appellate Court shall consider and adjudicate all issues in accordance with the law in force, for which the parties shall appear before the First Appellate Court on 12.10.2021.
Appeal will stand allowed accordingly. No costs.
Sd/-
P.SOMARAJAN
JUDGE
DMR/-
3 issues framed by the court
Whether a remand to trial court is permissible under Order 41 Rule 24 CPC when evidence on record is sufficient to determine issues.
Whether non-consideration or failure in appreciating evidence by appellate court can be ground for remand if evidence is sufficient.
Whether the remand order below was rightly passed on the ground of mistake regarding attesting witness.
Colour shows how this judgement treated each authority
FAO (RO) No.14/2021Explained¶39
2 provisions across 2 enactments
Vinnamchathayil Kuttan
Vinnamchathayil Chandran
Janaki
Simi
Shiju
P. Somarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
