BHUVANESWARI Vs. SARASWATHI AMMAL

JUDGEMENT

(1.) THE respondent has been served. She is neither appearing in person nor has engaged any counsel. The plaintiff is before this Court challenging the order of remand passed by the lower appellate Court. Heard the learned counsel for the appellant.

(2.) THE plaintiff went before the learned trial Judge in O. S. No. 166 of 1990 seeking against the judgment and decree of subordinate Judge's Court, Kallakurichi, in a. S. No. 286 of 1996, D/- 26-2-1999. a decree of prohibitory injunction restraining the defendant from in any way interfering with her such possession. Voluminous oral as well as documentary evidence was let in before the trial Judge. The trial Judge decreed the suit in favour of the plaintiff. The defendant appealed in A. S. No. 286 of 1996. The learned appellate Judge, after going through the entire materials placed on record, found that a need had arisen for the appointment of an Advocate commissoner so that the property forming the subject-matter of the suit could be identified and with that view in his mind, passed the order of remand which is now under challenge.

(3.) WE went through the judgment of the lower appellate Court. As already noted, enough oral and documentary evidence had been let in on the side of the plaintiff as well as on the side of the defendant. An order of remind cannot be for the mere purpose of remanding a proceeding to the lower Court. It is governed by the provisions of the Code of Civil Procedure commencing from O. 41, r. 22 onwards. The appellate Judge's view that in order to enable the parties tb have the suit properties identified, an Advocate commissioner had to be appointed and for that purpose, the suit must be remanded back to the trial Court, in our considered opinion, is not warranted on the facts of the case. If it is possible for the appellate Court to evaluate the evidence made available on record and come to its own conclusion one way or the other, then it is not open to the lower appellate Court to come to the aid of the parties for filling up a lacuna which is found wanting in the records.