DURAISAMY Vs. RAMASAMY

JUDGEMENT

(1.) The Judgment and decree dated 27.07.2017 passed by the Additional Subordinate Judge, Chingelput in A.S.No.15 of 2013 is under challenge in the present Civil Miscellaneous Appeal.

(2.) The suit was instituted by the respondent for permanent injunction. The suit was dismissed by the trial Court. The respondent filed the appeal suit in A.S.No.15 of 2013. The First Appellate Court adjudicated the issues on merits. However, remanded the matter back to the trial Court for appointment of an Advocate Commissioner to inspect the suit property in the presence of both the parties and their counsel and to submit a Plan and Report showing the actual facts as they are found and as they exists.

(3.) Once the First Appellate Court adjudicated the issues on merits with reference to the documents and evidences, the appeal suit is to be disposed of on merits and in accordance with law and by affording opportunity to the all parties. Remanding of the matter of appointment of an Advocate Commissioner is unnecessary. Under Section 107of the C.P.C., the First Appellate Court has got powers to take additional evidence, examine witnesses and decide the matter on merits. Even in case, the trial Court failed to appreciate the evidences or to consider the documents, the said exercise can very well be done by the First Appellate Court and for that purpose, the cases cannot be remanded back. Only if the suit is decide on preliminary issue, then alone, the suit can be remanded for re-trial and not otherwise.