Whether case can be remanded to lower court for the purpose of enabling a party to fill up the lacuna in the evidence?

From the decision noted supra, it is evident that there cannot be a remand merely for the purpose of a remand and such a view cannot be exercised unduly and unreasonably. The courts are not expected to set the clock back to the starting stage by driving the parties again to start afresh the matter unnecessarily, so as to drive them to further decades to get the matter settled. A remand cannot be made merely for the purpose of enabling a party to fill up the lacuna in the evidence. 

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

B. KEMAL PASHA, J. 

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F.A.O. No. 226 of 2012 

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AGAINST THE ORDER/JUDGMENT IN AS 176/2007 of II ADDL.D.C. PALAKKAD DATED 16-01-2012 AGAINST THE ORDER/JUDGMENT IN OS 388/1999 of ADDL.SUB COURT, PALAKKAD DATED 22-02-2007 

Dated this the 5th day of June, 2014 

Can a case, in which a remand order was not requested for, be remitted to the trial court by the first appellate court for giving one more opportunity to the plaintiff to adduce further evidence on a particular issue, especially when there was no complaint for the appellant/plaintiff in the appeal memorandum that no sufficient opportunity was given to the plaintiff by the trial court to adduce evidence on that particular issue, is the short question that comes up for consideration in this appeal. 

2. The appellant herein, an unfortunate man, who lost his first wife in whom he has two children, wanted to have a second marriage primarily for the purpose of properly maintaining his two children. He made an advertisement in the matrimony column of a news daily which invited the application and attention of the 2nd respondent, who was in search of a fertile avenue to exercise fraud and cheating. During the subsistence of her marriage with another person, she entered into a marriage with the appellant herein by deliberately suppressing her then existing marriage. While the appellant and the 2nd respondent were residing together as husband wife at the house of the appellant, to his utter dismay he could see the presence of Kasaragod Police at his house on 23.09.1998, in order to place the 2nd respondent under arrest in connection with a case of misappropriation and criminal breach of trust. She was placed under arrest and was taken away. Enquiries revealed her active participation in fraud, cheating and criminal breach of trust involving an amount of 59,000/- and odd at the institution wherein she was working earlier. Further enquiries by the appellant revealed her continued acts of fraud and cheating. It has also come out that she had gone into a form of marriage with the appellant during the subsistence of her earlier marriage, by deliberately suppressing the then subsisting marriage. The appellant immediately approached the Subordinate Judges' Court, Palakkad through an O.P. for divorce. The 2nd respondent had no time to resist the O.P. as she did not want to do it. Consequently, through Ext.B2 decree of divorce dated 18.07.2003, the marriage was dissolved. 

3. The appellant was in search of all his documents and records including the four F.D. receipts by which amounts were deposited by him before various co-operative banks, as he suspected that some thing might have been done in the matter by the 2nd respondent. To his utter dismay, he could find that four of his F.D. receipts were missing. Immediately, he contacted the said co-operative banks where he had made the fixed deposits and requested for the duplicate copies of those F.D. receipts, which were found missing. Then to his utter shock he was informed by the 3rd respondent Co-operative Bank herein that lien had been noted in favour of the 1st respondent Bank herein on such F.D. receipts through Ext.A18 letter. By that time, the 1st respondent Bank issued Ext.A22 notice to the appellant thereby calling upon him to repay an amount of 72,637/- alleging that the appellant had obtained a loan of 90,000/- from the Bank through the 2nd respondent by furnishing 4 F.D. receipts as security. Immediately, on receipt of Ext.A22, the appellant replied through Ext.A24(Ext.B3) denying his liability and denying the whole transaction and by stating that he had never authorised the 2nd respondent to obtain the loan from the 1st respondent herein and that the 2nd respondent had stolen away his F.D. receipts and furnished it as security before the 1st respondent Bank without his knowledge and consent. He had denied all the transactions relating to the loan account. In the mean time, the 1st respondent has filed O.S.388/93 before the Subordinate Judge's Court, Palakkad and another suit as O.S.202/02 also before the said court relating to the discount of a cheque made by the 2nd respondent herein. It seems that in O.S.202/02 the present appellant was unnecessarily impleaded as the 2nd defendant. 

4. The learned Subordinate Judge, after appreciating the entire evidence in the matter, reached a conclusion that all the documents allegedly furnished by the 2nd respondent before the 1st respondent Bank as documents executed by the present appellant were forged. By exonerating the appellant from any liability, the learned Subordinate Judge decreed the suit as against the 2nd respondent alone thereby enabling the Bank to recover the plaint amounts from the 2nd respondent and her properties, if any. 

5. The 1st respondent Bank did not stop there. They have chosen to take up the matter in O.S.388/99 to the court below in appeal as A.S.176/07. It seems that the lower appellate court has also appreciated all the arguments forwarded by the learned counsel for the appellant herein and has almost come to a conclusion that the documents allegedly furnished by the 2nd respondent before the 1st respondent bank in the transaction as documents executed by the appellant, were forged. Even then, the lower appellate court has chosen to set aside the judgment and decree passed by the trial court and to remit the matter to the trial court for fresh disposal after giving an opportunity to the 1st respondent herein to take steps to send the disputed documents for effective comparison with the admitted signatures of the appellant, by a qualified expert. It is the said remand order which is under challenge herein. 

6. When this appeal came up for hearing, there is no representation for the 1st respondent and 2nd respondent herein. The learned counsel for the 3rd respondent is present. Heard the learned counsel for the appellant in extenso. It has come out that the 1st respondent Bank has lost its interest in the subject matter as against the present appellant. The learned counsel for the appellant has pointed out that the remand order passed by the court below through the impugned judgment is a remand for the sake of a remand and not one as contemplated under Rule 23 or Rule 23A of Order XLI of the Code of Civil Procedure, 1908. 

7. The learned counsel for the appellant has invited the attention of this Court to the evidence of PW1 when he was subjected to cross examination before the Trial Court. He has clearly admitted that there was no signature on the overleaf of Ext.A7 F.D. receipt and therefore, the 1st respondent Bank could not make use of it as security. He has clearly admitted that the loan amount was availed and a portion of the same was repaid by the 2nd respondent herein. According to him, he had compared the signatures on the overleaf of Exts.A4, A5 and A6 and ascertained that the same were affixed by the appellant, with the aid of the specimen signature of the appellant in his accounts at the Bank. When he was asked as to what was the reason in not sending those documents to a handwriting expert for comparison, he clearly answered that there was no use for the same as they were fully aware that those signatures were affixed by the appellant. It is evident that before the trial court the 1st respondent herein had not requested for any opportunity to get those documents subjected to comparison by a handwriting expert for an expert opinion. 

8. The learned counsel for the appellant has invited the attention of this Court to grounds 4 and 10 in the appeal memorandum preferred by the 1st respondent herein before the lower appellate court. Ground No.(4) in the appeal memorandum is as follows: 

"The observation and inference of the lower court that D1 had no role to play is against the actual state of affairs and evidence and the comment that plaintiff bank has not taken steps to send A2 or A1 to A13 for expert opinion, is not required in the circumstances and legally unsustainable in view of the latest legal pronouncement reported in 2005 (3) KLT 163." 

Ground No.10 therein was, 

"The omission or failure of the lower court to have a comparison of signature of D1 in Ext.A2, A4 to A7, A11, A12 the vakalath, written statement etc. worked great hardship and injustice to the plaintiff in coming to a proper conclusion u/s 73 r/w Sec.3 of the EvidenceAct." 

9. From those grounds specifically taken up by the 1st respondent herein in the appeal memorandum preferred before the court below it is evident that the 1st respondent had no complaint that they were not given any sufficient opportunity to adduce any expert evidence in the matter. The clear stand taken by the 1st respondent before the court below as appellant was that there was no necessity for any expert opinion in the matter, and the court ought to have made such a comparison. Still, it seems that the court below has chosen to extend such an opportunity to the present 1st respondent. 

10. The learned counsel for the appellant has invited the attention of this court to the various circumstances which clearly reveal that any such remand is not required in the matter. It has clearly come out that the 2nd respondent always used to play fraud and cheating on various persons even prior to her marriage with the appellant. She had further played cheating, misappropriation and criminal breach of trust at the institution wherein she was worked at Kasaragod, for which criminal proceedings were initiated against her as is evident from Exts.X1 to X4. On one morning she was placed under arrest by the Kasaragod police from the house of appellant to his utter dismay and shock, and thereafter he made enquiries regarding her conduct. It was revealed that she had gone into a form of marriage with him by deliberately suppressing her then existing marriage thereupon the appellant had no other go than to file an O.P. seeking divorce. The same was not resisted by the 2nd respondent herein and ultimately he was granted divorce through Ext.B2 judgment. 

11. This Court has compared the signatures seen affixed on the overleaf of Exts.A4, A5, and A6, with the admitted signatures of the appellant. Even on a bird's eye view, it is evident that the signatures seen affixed on the stamps affixed on the overleaf of those F.D. receipts were imitations of the signatures of the appellant. Another important aspect pointed out by the learned counsel for the appellant is that two of the F.D. receipts, Ext.A6 and Ext.A7, which were allegedly furnished as security for obtaining the loan on 23.05.1997 had become matured even at that time. Ext.A6 was for 20,000/- and Ext.A7 was for 25,000/-. So, altogether, an amount of 45,000/- was due on those F.D. receipts even at the time when the same were allegedly furnished as security by the 2nd respondent. Had the loan been obtained by the appellant from the 1st respondent, definitely he would not have furnished Exts.A6 and A7 as security; whereas, he would have encashed those F.D. receipts which were then matured, and would have availed a loan for the balance amount only. The attitude of the 1st respondent Bank in the matter is also not above suspicion. It cannot be imagined that the concerned officers of the Bank, who were instrumental in filling up Ext.A1 loan application and sanctioning the loan were not aware of the fraudulent acts from the part of the 2nd respondent in the matter. It seems that Ext.A2 authorisation is also a cooked up one in which the signature of the appellant has been forged. Ext.A2 was a typewritten document. The lower appellate court on a careful comparison of Ext.A2 with the typewritten contents of Ext.A3 promissory note allegedly executed by the 2nd respondent could observe that those two documents were prepared through the very same typewriter. Paragraphs 11, 12 and 14 of the impugned judgment clearly reveal that the court below was satisfied that all those documents were forged and that the appellant had no role in obtaining any such loan from the 1st respondent Bank. Further, even going by Ext.A2, it can be seen that the 2nd respondent was not authorised to obtain the loan amount from the 1st respondent Bank. Even when there was no such authorisation to obtain the loan amount, the 1st respondent Bank had the magnanimity to disburse the whole loan amount to the 2nd respondent. The active connivance of the persons in the 1st respondent Bank to the forgery and the fraudulent transaction in collusion with the 2nd respondent cannot be ruled out. It seems that unnecessarily the appellant was dragged to the corridors of the courts of law for no fault of him. It is true that he had committed a fault in going through a form of marriage with the 2nd respondent without making proper enquires about her. For the said mistake, he cannot be penalized by the 1st respondent Bank. 

12. The learned counsel for the appellant has invited the attention of this Court to the decision in Sugunan v. Joseph [2009 (1) KLT 160] wherein it was held in paragraph 16 as follows: 

"Question of law (d): The lower appellate Court has remanded the case to the trial court not because that the plaintiff was denied an opportunity to adduce evidence. The plaintiff has no case that he was denied an opportunity to adduce evidence. The court below has remanded the case only on the ground that from the available evidence on record, the court is unable to fix the quantum of damages. It is also stated that in order to award damages, some more evidence is required and an opportunity should be provided to the plaintiff for that purpose. A remand of the case cannot be made for the purpose as stated by the court below. A remand could be made in any of the contingencies mentioned in Rr. 23, 23-A and 25 of O. XLI of the Code of Civil Procedure. The requirements of these rules are not available in the present case. A remand for the mere purpose of enabling a party to adduce more evidence cannot be made unless there are other compelling circumstances for such a remand."

13. In Sekharan Nambiar v. Ramanunni Nambiar [1992 (1) KLT 429] it was held in paragraph 5 as follows: 

"Therefore, in my view, the order of remand passed by the lower court is fully unjustified. As pointed out by the Supreme Court in Civil Appeal 1610 of 1968 in India Army & Police Equipment v. Kanodia Brothers [1968 KLT SN 19) a first appeal is a re- hearing and if the parties have led all the evidence they desired, it is the duty of the FirstAppellate Court to give its own conclusions upon the evidence before it. If a trial court does not properly understand the pleadings, it is for the appellate court to reverse the findings and give its own findings; again, if an issue has been decided by the trial court in a very perfunctory manner. But power to order retrial after remand, where there has already been a trial on evidence before the court of first instance, cannot be exercised merely because the appellate court is of the view that the parties who could lead better evidence in the court of first instance have failed to do so."

14. In Narayani v. Damu [1988 (2) KLT 957] it was held in paragraph 4 as follows: 

"The Madras High Court has held in Pattammal's case that a remand cannot be ordered to enable a party to fill up the lacuna in the case and that the discretion should not be exercised in an arbitrary manner." 

15. In Heinz India Pvt. Ltd. and another v. State of Uttar Pradesh and others [2012 (5) SCC 443] it was held in paragraph 83 as follows: 

"So also, no remand ought to be made only to enable a party to produce additional material. A remand is neither mechanical nor a routine affair. If there is nothing wrong in the orders under challenge, there is no question of interference with the same. There is no reason for this Court to set the clock back and start a process which would take the parties another decade or so to come to terms with the problem." 

16. In Hameed and others v. Kummottummal Kunhi P.P. Amma [(2007) 15 SCC 155] it was held in paragraph 10 as follows: 

"It is seen from the judgment passed by the trial court that apart from Exts.A1 and A2, which are the copies of adangal registers, no other documents are produced by the plaintiffs to show that they or their predecessors have got title to the plaint schedule property. This apart, the plaintiff was given sufficient opportunity to produce the documents. In spite of opportunity, no other documents were filed and in the circumstances, we are of the opinion that the High Court should not have remanded the matter with liberty to produce documents in order to fill lacuna in the evidence." 

17. From the decision noted supra, it is evident that there cannot be a remand merely for the purpose of a remand and such a view cannot be exercised unduly and unreasonably. The courts are not expected to set the clock back to the starting stage by driving the parties again to start afresh the matter unnecessarily, so as to drive them to further decades to get the matter settled. A remand cannot be made merely for the purpose of enabling a party to fill up the lacuna in the evidence. From the available evidence in the matter, the court below was satisfied that the transaction in question was a result of fraud and forgery committed by the 2nd respondent herein and that the 1st respondent had no knowledge with regard to the said transaction. Even without any authorisation, amounts were disbursed by the 1st respondent Bank unauthorizedly and illegally to the 2nd respondent, especially when there was no reason to believe that a prudent man like the appellant would have furnished Exts.A6, A7 as security. The entire circumstances point towards the connivance of those associated with the 1st respondent Bank also in the matter. There was no necessity for a remand as the one made by the first appellate court in this case, especially when the 1st respondent herein, who had preferred the appeal, had not complained that no sufficient opportunity was given to them to collect or adduce any evidence.

18. It seems that the remand has been made unduly and unreasonably and the court below has unnecessarily set the clock back to the starting point again thereby driving the parties unnecessarily to continue litigations. Matters being so, the order of remand made through the impugned judgment is only to be set aside. All the findings and observations made by the trial court judgment impugned before the first appellate court clearly hold good and do not warrant any interference at all. Therefore, by sustaining the judgment rendered by the trial court, the impugned judgment is liable to be set aside. 

In the result, this appeal is allowed with costs to be recovered from the 1st respondent. The judgment impugned passed by the lower appellate court is set aside by maintaining the judgment rendered by the trial court.