LexJEGANNATHAN versus RAJU SIGAMANI & ANR.
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[2012] 3 S.C.R. 1003 JEGANNATHAN v. RAJU SIGAMANI & ANR. (Civil Appeal Nos. 3347-3348 of 2012) APRIL 2, 2012 [R.M. LODHA AND H.L. GOKHALE, JJ.] Code of Civil Procedure, 1908: A B 0. 43, r.1(u) rlw 0.41, r.23-A and s.100 - Miscellaneous c civil appeal filed before High Court against order of remand passed in a first appeal under 0.41 - Held: Is maintainable - Order of remand passed under 0. 41, r.23-A is amenable to appeal under 0. 43, r. 1(u) - However, the constraints of s. 100 continue to be attached to such an appeal - There is a 0 difference between maintainability of an appeal and the scope of hearing of an appeal - Order of High Court holding the civil miscellaneous appeal as not maintainable set aside. The appellant-plaintiff No. 2 along with two others filed a suit against the defendant-respondent No.1 for E declaration and permanent-mandatory injunction. The suit was decreed for permanent injunction. On respondent No. 1 filing a first appeal, the judgment of the trial court was set-aside and the suit was remanded back to the trial court for decision afresh on merits. The civil F miscellaneous appeal filed by the appellant and respondent No. 2 under 0. 43, r. 1 (u) of the Code of Civil Procedure 1908 was held by High Court as not maintainable. The review petition was also dismissed. Allowing the appeals, the Court HELD: 1.1. Order 41 of the Code of Civil Procedure, 1908 provides for appeals from original decrees. The Code empowers the appellate court to order remand in 1003 G H 1004 SUPREME COURT REPORTS [2012] 3 S.C.R. A three situations. These three situations are covered by 0. 41, r. 23, 0. 41, r. 23A and 0. 41 r. 25. [para 9] [1006-E] 1.2. In the instant case, the trial court had disposed of the suit on merits and not on a preliminary issue. The first appellate court set aside the judgment and decree 8 of the trial court and directed it to decide the suit afresh ·after giving parties an opportunity to lead evidence - oral as well as documentary. The nature of the order passed by the appellate court leaves no manner of doubt that such order has been passed by it in exercise of its power C under O. 41, r. 23A of the Code. [para 13) [1008-0-E] 1.3. Clause (u) of r.1 of 0.43 was amended consequent upon insertion of r.23A in 0. 41 w.e.f. 1.2.1977. It is clear from the above provision that an order D of remand passed under 0. 41 r. 23A is amenable to appeal underO. 43, r.1 (u) of the Code. [para 14-15) [1008- F; 1009-A] 1.4. The constraints of s.100 continue to be attached E to an appeal under 0. 43, r.1 (u). The appeal under 0. 43, r.1(u) can only be heard on the grounds a second appeal is heard u/s 100. There is a difference between maintainability of an appeal and the scope of hearing of an appeal. The High Court failed to keep in view this distinction and wrongly applied the case of Narayanan F in holding that miscellaneous appeal preferred by the appellant was not maintainable. The order of the High Court is set aside. The C.M.A. No. 1227 of 2002 is restored to the file of the High Court, for hearing and dispos al in G H accordance with law. [para 15,17 and 18] [1009-C-F] Narayanan Vs. Kumaran & Ors. 2004 (3)SCR 11 = (2004) 4 sec 26- explained. Case Law Reference: 2004 (3) SCR 11 explained para 15 JEGANNATHAN v. RAJU SIGAMANI & ANR. 1005 CIVIL APPELLATE JURISDICTION : Civil Appeal No. A 3347-3348 of 2012. From the Judgment & Order dated 26.09.2008 of the High Court of Madurai Bench of Madras High Court in C.M.A. No. 1227 of 2002 and order dated 12.11.2009 in Review 8 Application No. 67 of 2009 in C.M.A. No. 1227 of 2002. V. Mohana for the Appellant. S. Aravindh, Senthil Jagadeesan for the Respondents. The Judgment of the Court was delivered by R.M. LODHA, J. Delay condoned. 1. Leave granted. 2. The appellant herein is plaintiff No. 2. He, along with two others, namely, Gnanasoundari and George filed a Suit against the present respondent No.1 for declaration, permanent injunction and mandatory injunction. 3. The respondent No. 1 contested the Suit on diverse grounds. 4. After recording evidence and on hearing the parties, the trial Court on September 16, 1999 decreed plaintiffs' Suit for the grant of permanent injunction. c D E F 5. Aggrieved by the judgment and decree dated September 16, 1999, the respondent No.1 preferred first appeal which came up for hearing before the Subordinate G Judge, Tiru
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