Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 1st DAY OF OCTOBER 2021 / 9TH ASWINA, 1943 FAO (RO) NO. 6 OF 2021 AGAINST THE JUDGMENT DATED 30.06.2020 IN AS No.20/2012 OF SUB COURT, ATTINGAL
JUDGMENT AND DECREE DATED 03.07.2009 IN O.S.No.9/2008 OF MUNSIFF
COURT, VARKALA APPELLANT/3rd APPELLANT/4th DEFENDANT: VIJAYAKUMAR, S/o GOPALAN, MULAVILA VEEDU, AYIROOR DESOM, AYIROOR VILLAGE, THIRUVANANTHAPURAM BY ADVS. GEORGE SEBASTIAN SRI.ARUN LUCKOSE ABRAHAM RESPONDENTS/RESPONDENTS 1 TO 12 AND APPELLANTS 2, 4 TO 6/PLAINTIFFS 1 TO 6 AND DEFENDANTS 2 AND 8, LEGAL REPRESENTATIVES OF DECEASED 1st DEFENDANT, DEFENDANTS 3, 5 TO 7:
1 MOHANLAL, S/o GOPALAN, M.R BHAVAN, AYIROOR DESOM, 2 SHEELA, D/o SUDHADRA, SARUN VILLA, AYIROOR DESOM, 3 SHEEMA, D/o SUDHADRA, NARAYANALAYAM, PALAYAMKUNNU, AYIROOR DESOM, AYIROOR VILLAGE, 4 SHEEJA, D/o SUBHADRA, MADHAVALAYAM, AYIROOR DESOM, 5 SHEMMY, D/o SUBHADRA, MOOLAVILA VEEDU, AYIROOR DESOM, 6 SHINI, D/o SUBHADRA, PALAYAMKUNNU PANKAJATHIL, KOVOOR, CHEMMARUTHY VILLAGE, AYIROOR DESOM, FAO (RO) No.6 of 2021 2 7 KANAKA DAS, S/o GOPALAN, KANAKA MANDIRAM, AYIROOR DESOM, 8 DEEBU, S/o SUGATHAN, VALIYAVILA VEEDU, AYIROOR DESOM, 9 INDIRA, W/o SOMARAJAN, BINDU NIVAS, AYIROOR DESOM, 10 BEENA, D/o SOMARAJAN, BINDU NIVAS, AYIROOR DESOM, 11 BINI, D/o SOMARAJAN, BINDU NIVAS, AYIROOR DESOM, 12 BINDU, D/o SOMARAJAN, BINDU NIAVS, AYIROOR DESOM, 13 DHARMARAJAN, S/o GOPALAN, DHANYA, OPPOSITE K.S.E.B, G.H.S ROAD, KAZHAKKUTTAM VILLAGE, 14 SANTHA SUGATHAN, W/o SUGATHAN, VALIYAVILA VEEDU, AYIROOR DESOM, AYIROOR VILLAGE, 15 MEENA, D/o SUGATHAN, VALIYAVILA VEEDU, AYIROOR DESOM, 16 SHEENA, D/o SUGATHAN, VALIYAVILA VEEDU, AYIROOR DESOM, R1-R7 & R9-R12 BY ADV SRI.PEEYUS A.KOTTAM THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO (RO) No.6 of 2021 3
JUDGMENT
A preliminary decree for partition with respect to the property left out by one Nani Lekshmi, the predecessor-in- interest of both the parties to the suit was set aside by the first appellate court on the reason that the property scheduled in the plaint is not the one allotted to the share of the abovesaid Nani Lekshmi in the mother document of partition ( Partition Deed No.2989/1966). For curing the said defect, an amendment application, I.A.No.2/2020 was filed. But, the first appellate court by making some observations with respect to the application of Order II Rule 2 and Order XXIII C.P.C. etc. remanded the matter back to the trial court.
2. The question came up for consideration is whether a
bonafide mistake crept in the schedule of property would cause prejudice to the parties when the suit was proceeded and defended without noticing the said mistake and whether the first appellate court is justified in remanding the matter, when both the parties have adduced evidence fully FAO (RO) No.6 of 2021 4 knowing the actual dispute involved in the suit.
3. What is sought to be partitioned in the suit is the
property allotted to the share of Nani Lekshmi under a mother document of partition of the year 1966. But, instead of quoting the schedule allotted to her share, the schedule allotted to some other person was mistakenly entered in the plaint schedule. It was not noticed either by the plaintiff or by the defendant, but proceeded with the suit under the impression that it is pertaining to the property left out by Nani Lekshmi under the partition of the year 1966. There is no reason to cause any kind of prejudice to the parties and no fresh evidence is required to dispose of the appeal on merits.
4. This Court had laid down the legal position in FAO(RO) No.14/2021 dated 24/09/2021 (given for reporting) in the following lines: “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 FAO (RO) No.6 of 2021 5
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 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 FAO (RO) No.6 of 2021 6 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.” Hence, the decree and judgment of the first appellate court will stand set aside and I.A.No.2/2020 will stand allowed. It is not at all necessary to adduce fresh evidence after the said amendment. The parties shall appear before the first appellate court on 20/10/2021 for fresh disposal. The appeal is allowed accordingly. No costs. Sd/- P.SOMARAJAN JUDGE DMR/-