The Court disposed of a Civil Miscellaneous Appeal challenging a remand order. Since the underlying suit was dismissed for default by the Trial Court and not restored, the appeal was ultimately dismissed summarily without adjudicating the legal contentions.
The appeal is disposed of; no costs; liberty given to file fresh appeal if suit is restored.
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 JUDICATURE AT MADRAS Dated: 27.09.2018
CORAM THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN C.M.A.No.297 of 2012 and M.P.No.1 of 2012
This Civil Miscellaneous Appeal has been filed against the Judgment and decree in A.S.No.70 of 2010 on the file of the Additional Subordinate Court, Virudhachalam, dated 22.11.2011 in reversing the Judgment and decree in O.S.No.274 of 2003 on the file of the II Additional District Munsif Court, Vridhachalam, dated 29.01.2010.
(1) Whether the Lower Appellate Court is justified in remanding the suit to Trial Court contrary to the provision under Order 41 Rule 23 of the Civil Procedure Code?
(2) Is the Lower Appellate Court justified in remanding the case after prima facie concluding the suspicious nature under which the will under Ex.A1 was brought into existence?
(3) Whether the learned Judge is right in rejecting the expert evidence under Ex.C.5 for his non examination, when the court has power to made comparison of signature under Section 73 of the Evidence Act.
Court is of the opinion that In case, if the suit is restored by the plaintiffs, liberty is given to the appellants to pursue this Civil Miscellaneous Appeal a fresh. Accordingly, the appellants are given liberty to file a fresh Civil Miscellaneous Appeal before this Court, if the suit is restored by the plaintiffs.
Sd/-
Assistant Registrar(CS VI)
//True Copy//
Sub Assistant Registrar
raja
To
1.The Additional Subordinate Court,
Virudhachalam.
2.The II Additional District Munsif Court,
Vridhachalam.
+1cc to Mr.V.Raghavachari, Advocate, S.R.No.67304
C.M.A.No.297 of 2012
and
M.P.No.1 of 2012
CP(CO)
RRS(02/04/2019)
3 issues framed by the court
Whether the Lower Appellate Court was justified in remanding the suit contrary to Order 41 Rule 23 CPC?
Whether remanding the case was justified after concluding the suspicious nature of the will?
Whether the Trial Court was right in rejecting expert evidence under Section 73 Evidence Act for non-examination?
3 provisions across 2 enactments
Loorthanthuvan
Magimainathan
S.Anthonimuthu
S.Eruthayam
V.BHAVANI SUBBAROYAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
