POOLAR Vs. GOMATHI MOOPANAR

JUDGEMENT

(1.) THIRD defendant in O. S. No. 94 of 1981 on the file of district Munsif, Sankarankoil, is the appellant in the above civil miscellaneous appeal. The first respondent herein, plaintiff in the said suit filed the same for declaration and permanent injunction. Apart from examining himself as P. W. 1, the plaintiff has examined 3 more witnesses as P. Ws. 2 to 4. He has also marked Exs. A1 to A23. On the other hand, the third defendant was examined as D. W. 1 and the second defendant was examined as D. W. 2. They have also marked Exs. B1 to B6 in support of their defence. The Commissioner's report and sketch were marked as Exs. C1 to C3. After framing necessary issues and in the light of the evidence on record, the learned District Munsif dismissed the suit with costs.

(2.) AGGRIEVED by the dismissal of the suit, the unsuccessful plaintiff filed appeal in A. S. No. 100 of 1986 before the subordinate Judge, Tenkasi. The lower appellate court after framing necessary points for consideration and after pointing out some defects in the plaintiff's case, remanded the matter to the trial court for fresh consideration.

(3.) WITH regard to order of remand, as held in H. M. Kari goundar v. SP. Sgarmull, 81 L. W 46 (SN) before passing an order of remand, the appellate court must find that the decree of the trial court requires to be set aside. Likewise, the word'interest of justice'mentioned in Order 41, Rule 23 to 27, C. P. C. does not widen the power of the appellate court to remand the suit. In other words, the appellate court should first come to the conclusion that the decision of the trial court is liable to be reversed. A similar view has been expressed by Govardhan, J. , in a recent decision reported in Soosairaj v. State of Tamil Nadu Rep. by District collector, Pudukkottai, I. L. R. 1996 (2) Mad. 1339.