Case Note & Summary
The case involves a property dispute where the plaintiff originally filed a suit for declaration, permanent injunction, and mandatory injunction. The Trial Court dismissed the suit, and the First Appellate Court initially dismissed the appeal. The plaintiff then filed a Second Appeal before the Madras High Court (S.A.No.335 of 2008), which was allowed by a learned Single Judge who remanded the matter to the First Appellate Court with a specific direction to appoint a Commissioner to measure the property as per the sale deeds of the parties. During the pendency of the earlier Second Appeal, the sole plaintiff died, and his legal representatives were brought on record. After remand, the First Appellate Court partly allowed the appeal and modified the Trial Court's decree, but did not appoint a Commissioner as directed. Aggrieved, the defendant filed the present Second Appeal (S.A.No.191 of 2021). The High Court examined whether the First Appellate Court complied with the remand order. It noted that the First Appellate Court failed to appoint a Commissioner to measure the property as per the sale deeds, which was the core purpose of the remand. The High Court held that this failure vitiated the First Appellate Court's judgment, as the identity and extent of the property were crucial issues. Consequently, the High Court allowed the Second Appeal, set aside the First Appellate Court's judgment, and remanded the matter back to the First Appellate Court for fresh disposal in accordance with the earlier remand order, directing the appointment of a Commissioner to measure the property as per the sale deeds. The High Court also directed the First Appellate Court to dispose of the appeal within six months.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The High Court, in exercise of its powers under Section 100 CPC, can interfere with findings of fact if the lower courts have failed to consider material evidence or have acted in violation of principles of natural justice. In the instant case, the First Appellate Court failed to comply with the remand order directing appointment of a Commissioner to measure the property as per sale deeds, thereby vitiating its judgment. (Paras 1-10) B) Property Law - Commissioner's Report - Sale Deed Boundaries - The High Court held that the First Appellate Court ought to have appointed a Commissioner to measure the property as per the sale deeds of the parties, as directed in the earlier remand order. The failure to do so resulted in a lack of proper evidence regarding the identity and extent of the suit property. (Paras 3-10) C) Civil Procedure - Remand - Compliance with Remand Order - When a higher court remands a matter for a specific purpose, the lower court must strictly comply with the directions. In this case, the First Appellate Court did not appoint a Commissioner as directed, and instead proceeded to decide the appeal without the necessary evidence, which is a serious irregularity. (Paras 3-10)
Issue of Consideration
Whether the First Appellate Court failed to comply with the remand order dated 13.06.2019 in S.A.No.335 of 2008, which directed the appointment of a Commissioner to measure the property as per the sale deeds of the parties, and whether the First Appellate Court's judgment is sustainable in law.
Final Decision
The High Court allowed the Second Appeal, set aside the judgment and decree of the First Appellate Court dated December 11, 2019, and remanded the matter back to the First Appellate Court for fresh disposal in accordance with the earlier remand order. The First Appellate Court is directed to appoint a Commissioner to measure the property as per the sale deeds of the parties and dispose of the appeal within six months.
Law Points
- Second Appeal under Section 100 CPC
- Substantial question of law
- Remand by High Court
- Commissioner's report
- Sale deed boundaries
- Duty of appellate court to consider evidence
