(2013) 288 KLR 688

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN

FRIDAY, THE 18TH DAY OF JANUARY 2013/28TH POUSHA 1934

RSA.No. 421 of 2012 ()

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AS.175/2008 OF THE II ADDITIONAL DISTRICT JUDGE, KOLLAM OS.281/2004 OF THE PRL.MUNSIFF'S, KOLLAM

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APPELLANT(S)/IST RESPONDENT/PLAINTIFF :-

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JACOB JOHN, S/O. YOHANNAN, RESIDING AT PUTHUCHIRA VEEDU KACHERI.P.O, KACHERI - WARD, KOLLAM FROM KAIPPALLY VEEDU PUNNAMUKKU, PERUMPUZHA.P.O, PERUMPUZHA CHERRY ELAMPALLOOR VILLAGE, KOLLAM NOW RESIDING AT KAIPPALLY VEEDU, 19/HARISREE NAGAR RADHAS COLONY, NEAR SANKER'S HOSPITAL, KOLLAM.

BY ADVS.SRI.N.DHARMADAN (SR.) SMT.D.P.RENU SRI.M.R.VENUGOPAL

RESPONDENT(S)/APPELLANTS 1 & 2/RESPONDENTS 2 TO 5/DEFENDANTS :-

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1. KUNJAMMA @ PODIYAMMA, W/O. VARGHESE PANICKER, KOZHALDEEKARA PUTHEN VEEDU, PERUMPUZHA.P.O, KUNDARA CHERRY, ELAPALLOOR VILLAGE, KOLLAM.

2. KUNJAMMA @ SUJAMOL, D/O. VARGHESE PANICKER, KOZHALDEEKARA PUTHEN VEEDU, PERUMPUZHA.P.O, KUNDARA CHERRY, ELAPALLOOR VILLAGE, KOLLAM.

3. SARAMMA, D/O. VARGHESE PANICKER, KOZHALDEEKARA PUTHEN VEEDU, PERUMPUZHA.P.O ELAPALLOOR VILLAGE, KOLLAM.

4. BROTHER KUNJUMON FOR INDIA POORNA SUVISESHA DAIVA SABHA, KUNDARA.

5. PASTER BABU VARGHESE, S/O. GEEVARGHESE, KURUGOTTU VEEDU, KUMPALA POYKA.P.O KANNAMPARA, VADASSERIKARA VILLAGE.

6. PASTER BABU VARGHESE, PRESIENT SEON PRARTHANA MANDIRAM, KUNDARA, RANNI TALUK, PATHANAMTHITTA DISTRICT.

R5 BY ADV. SRI.VARGHESE PREM R1 & R2 BY ADV. SRI.ALEX N.MATHEW (KOLLAM) R1 & R2 BY ADV. SRI.H.RAMANAN R1 & R2 BY ADV. SRI.JAMES JOSE

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt

N.K.BALAKRISHNAN, J.

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R.S.A. No.421 of 2012

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Dated this the 18th day of January 2013

Head Note:-

Civil Procedure Code, 1908 - Section 100 & Order XLIII Rule 1(u) - Appeal against the order of remand - Second Appeal is unsustainable.

J U D G M E N T

"Is a Regular Second Appeal maintainable against an order of remand passed by the lower appellate court" is the short question that now arises for consideration in the appeal. The plaintiff who filed a suit for fixation of the northern boundary of the plaint schedule property and for consequential injunction has filed this second appeal. It is alleged that in the suit an Advocate Commissioner was appointed to measure the property. When the suit was posted for evidence, both parties represented before court that they have no dispute against the report, mahazar and plan submitted by the Advocate Commissioner. Hence, without raising any issue the court decreed the suit accepting the Commissioner's reports and plans. Defendants 1 and 3 filed appeal challenging the said decree and judgment passed by the trial court. The Addl. District Judge, after hearing both sides, allowed the appeal, set aside the judgment of the trial court and remanded the case to the trial court for fresh disposal. It is contended by the appellant herein that the lower appellate court was not justified in not acting upon the oral admission or consent made by the counsel appearing for the parties before the trial court that the parties had no objection in deciding the suit accepting the Commissioner's report and plan. It is also argued that the defendants, who filed the appeal did not in fact adduce any oral or documentary evidence to sustain their plea that Ext.C3 plan causes serious prejudice to them.

2. Heard the learned Senior Counsel appearing for the appellant and also the learned counsel appearing for the respondents.

3. An objection has been raised by the learned counsel appearing for R1 and R2 that a Regular Second Appeal under Sec.100 of CPC is not maintainable against an order of remand passed by the lower appellate court. It is pointed out by the learned counsel for the respondents that an appeal is provided under Sec.104 and Order XLIII of CPC against an order passed under Rule 23 or 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court as provided under Order XLIII Rule 1(u) of the CPC. As per Rule 23 of Order XLI, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment or order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suit, and proceed to determine the suit. The relevant portion of the judgment of the lower appellate court is extracted here under :-

"The judgment and decree are set aside. The matter is remanded for fresh disposal to proceed with the case as per law. Parties shall appear before court below on 15.3.2012."

Therefore, the contention that it is not an order of remand under Rule 23 of Order XLI and so it is not appealable as provided under Order XLIII Rule I(u) cannot be sustained.

4. It was vehemently argued by the learned Senior Counsel appearing for the appellant that the lower appellate court was not justified in upsetting the decree and judgment of the trial court solely for the reason that no endorsement was obtained to pass a consent decree. It is further argued that in paragraph 5 of the trial court judgment it was clearly stated that the counsel appearing for the defendants submitted that the defendants had no dispute against fixing and putting up of boundary as per Ext.C3 plan and that fact was, in fact recorded by the trial court and so, the decree and judgment of the trial court based on the said submission made by the counsel appearing for the defendants should not have been ignored. The decision of the Apex Court in Vimaleshwar Nagappa Shet v. Noor Ahmed Sheriff & Ors. [AIR 2011 SC 2057] has been relied upon in support of the submission that statement made by the counsel, as recorded in the judgment or order, cannot be later challenged before the superior court. Any way, it is not necessary to further probe into those aspects since the second appeal is to be disposed of on the preliminary point only. Hence, whether the admission made by the defendants' counsel before the trial court as recorded in the judgment of the trial court can be challenged before the appellate court or not is to be considered in the appeal yet to be properly filed by the appellant.

5. Learned counsel for the respondents would submit that as per sub-rule (2) of Order XLIII Rule 1A, in an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded and so, the contention that the defendants in the suit were not entitled to file appeal challenging the decree and judgment of the trial court cannot be sustained.

6. The learned Senior Counsel appearing for the appellant has relied upon the decision of the Madras High Court in Kaluvaroya Pillai and others v. Ganesa Pandithan and others [AIR 1969 Madras 248] in this connection. That was a case where the lower appellate court remanded the suit for re-consideration of all the issues after setting aside the judgment and decree of the trial court in full. It was found therein that the lower appellate court had substituted its own judgment to that of the trial court and in the peculiar circumstances of the case it was not open to the appellants in the Civil Miscellaneous Appeal to canvass the entire judgment and decree of the lower appellate court by filing an appeal under Order XLIII Rule 1(u) of CPC. This decision has been canvassed by the learned Senior Counsel to fortify his submission that even though an appeal against the order of remand is provided under Order XLIII Rule 1(u) of CPC, in the peculiar nature of this case, a second appeal is perfectly maintainable. But this submission has been taken strong exception to by the learned counsel appearing for the respondents pointing out that the appeal before the lower appellate court was mainly filed under Order XLI and that in view of Rule 1A of Order XLIII it was open to the defendants to contend that the compromise should not have been recorded as it was unlawful, being vitiated by fraud or misrepresentation and that was the reason why the decree and judgment of the trial court was set aside by the lower appellate court. The learned counsel for the respondents would submit that the decree and judgment of the trial court was set aside by the lower appellate court for the reasons mentioned above and an order of remand was made because of those reasons and so, if actually the plaintiff (the appellant herein) wanted to challenge that order of remand then certainly all those contentions can be raised in the appeal that can be filed under Order XLIII Rule 1(u) of CPC.

7. It was held by the Honourable Supreme Court in Jegannathan v. Raju Sigamani & Anr. [AIR 2012 SC 3788] :-

"Order 43 of the Code provides for appeals from orders. Clause (u) of Rule 1 Order 43 was amended consequent upon insertion of Rule 23A in Order 41 w.e.f. February 1, 1977.

It reads as under : An appeal shall lie from the following orders under the provisions of Section 104, namely :-

x x x x x

(u) an order under Rule 23 or Rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court ;

x x x x x

It is clear from the above provision that an order of remand passed under Order 41 Rule 23A is amenable to appeal under Order 43 Rule 1(u) of the Code."

8. The decision of this Court in Joy Francis and another v. Joseph Netto and others [ILR 2012 (2) Ker. 272] has also been referred to in this connection. This decision has been relied upon to contend for the position that if a party wants to impeach the decree passed on the basis of the compromise or agreement, the remedy left to him is to impeach the same before the court which passed the decree based on such compromise or agreement and to establish that the consent or agreement relied upon by the trial court is vitiated by fraud, undue influence, misrepresentation etc. But the learned counsel for the respondents would submit that the party challenging the compromise referred to above can file a petition under the Proviso to Rule 3 of Order XXIII or an appeal under Sec.96(1) of the Code, in which case, he can question the validity of the compromise in view of Rule 1A of Order XLIII as has been held by the Apex Court in Banwari Lal v. Smt.Chando Devi (through L.R.) and another [AIR 1993 SC 1139]. In view of the finding entered by me that the remedy open to the appellant is to file an appeal against the order of remand passed by the appellate court as provided under Order XLIII Rule 1(u), I have no hesitation to hold that the present Second Appeal filed by the appellant is unsustainable. The appellant can file an appeal against order of remand as provided under Order XLIII Rule 1(u), if he is so advised. This R.S.A. is hence dismissed as not maintainable.

N.K.BALAKRISHNAN, JUDGE.

Jvt