Ponchai Chettiar (Dead) By LRs. Vs. Ramasamy Naicker
EmailAppeal: Civil Appeal No. 2334 of 2000
(Arising out of SLP (C) No. 7876 of 1999)
(Arising out of SLP (C) No. 7876 of 1999)
Petitioner: Ponchai Chettiar (Dead) By LRs.
Respondent: Ramasamy Naicker
Apeal: Civil Appeal No. 2334 of 2000
(Arising out of SLP (C) No. 7876 of 1999)
(Arising out of SLP (C) No. 7876 of 1999)
Judges: S.B. MAJMUDAR & Y.K. SABHARWAL, JJ.
Date of Judgment: Mar 31, 2000
Head Note:
PRACTICE AND PROCEDURE
Civil Procedure Code, 1908
Section 103 – Evidence of an attesting witness, not considered by lower Appellate Court. Held that judgments of lower Appellate Court and High Court are set aside and matter remanded to lower Appellate Court for fresh decision. (Para 4)
JUDGEMENT:
ORDER
1. Leave granted.
2. We have heard learned Counsel for the parties finally in this appeal.
3. A limited notice was issued on 6.9.1999 as under :
” Notice to issue for final disposal which shall state that the respondent may show cause why the impugned order should not be set aside and the Second Appeal should not be remanded to the High Court for fresh decision strictly as per Section 100, Code of Civil Procedure.”
4. We find from the judgment of the High Court impugned in the present proceedings that according to the High Court this was fit case for invoking Section 103 of the Code of Civil Procedure as evidence of D.W.2 was not considered by the lower Appellate Court. When we turn to the judgment of lower Appellate Court at page 61 of the paper book, we find that though in express terms the evidence of D.W.2 was not considered, D.W.2 was an attesting witness to Ex. B-2. The same was considered and its recital was noted by the lower Appellate Court. However, learned Counsel for the respondent is right when he submits that the evidence of D.W.2 was not considered. In our view, interest of justice would be served if the impugned judgment of the High Court and also the order passed by the lower Appellate Court are set aside and the proceedings are remanded to the lower Appellate Court, namely, to the court of subordinate judge, Tuticorin, and A.S. No. 64 of 1985 is restored to the file of learned subordinate judge, Tuticorin. It is ordered accordingly. Learned subordinate judge, Tuticorin, is directed to redecide the appeal after hearing the parties in accordance with law. We make it clear that we make no observations on the merits of the controversy between the parties. The appeal is allowed accordingly. There will be no order as to costs.
1. Leave granted.
2. We have heard learned Counsel for the parties finally in this appeal.
3. A limited notice was issued on 6.9.1999 as under :
” Notice to issue for final disposal which shall state that the respondent may show cause why the impugned order should not be set aside and the Second Appeal should not be remanded to the High Court for fresh decision strictly as per Section 100, Code of Civil Procedure.”
4. We find from the judgment of the High Court impugned in the present proceedings that according to the High Court this was fit case for invoking Section 103 of the Code of Civil Procedure as evidence of D.W.2 was not considered by the lower Appellate Court. When we turn to the judgment of lower Appellate Court at page 61 of the paper book, we find that though in express terms the evidence of D.W.2 was not considered, D.W.2 was an attesting witness to Ex. B-2. The same was considered and its recital was noted by the lower Appellate Court. However, learned Counsel for the respondent is right when he submits that the evidence of D.W.2 was not considered. In our view, interest of justice would be served if the impugned judgment of the High Court and also the order passed by the lower Appellate Court are set aside and the proceedings are remanded to the lower Appellate Court, namely, to the court of subordinate judge, Tuticorin, and A.S. No. 64 of 1985 is restored to the file of learned subordinate judge, Tuticorin. It is ordered accordingly. Learned subordinate judge, Tuticorin, is directed to redecide the appeal after hearing the parties in accordance with law. We make it clear that we make no observations on the merits of the controversy between the parties. The appeal is allowed accordingly. There will be no order as to costs.
