ANDI JANAKI Vs. S CHELLIAH NADAR

JUDGEMENT

(1.) HEARD Mr. Peppin Fernando and Mr. S. Krishnaswamy for the respective parties.

(2.) ACCORDING to the appellant, the suit property belongs to her and that she is in peaceful possession and enjoyment of the same and the respondent claimed that he is cultivating tenant of the suit property. ACCORDING to the appellant, the respondent had not produced any document to substantiate his claim. The trial Court dismissed the suit. The appellate Court reversed the finding of the lower Court and allowed the appeal and remanded the matter to the lower Court. Aggrieved by the order of remand the appellant has filed the Civil Miscellaneous Appeal in this Court.

(3.) IT is well settled that the power of remand should be sparingly exercised. There should be always endeavour to dispose of the case by the appellate Court itself when the commissions or omissions made by the first Court could be corrected by the appellate Court. A Division Bench in Visalakshi v. Danalakshmi Ammal (1980 (2) L.W. 414) has pointed out that the unsatisfactory consideration of an issue by the first Court and the non-advertence to the judicial precedents by the first Court while deciding an issue and the need to take additional evidence, should not always be counted in favour of making an order of remand. The Court has also pointed that these lacunae, if in fact they are present, can be rectified by the appellate Court itself, unless there are very compelling circumstances to make an order of remand. In the instant case, the lower appellate Court has passed the order of remand as a matter of course on the points mentioned above in the earlier part of this order. The lacunae pointed out by the lower appellate Court in my opinion can be rectified by the appellate Court itself. Learned counsel for the respondent contended that the lower appellate Court has remanded the matter in the interests of justice and, therefore, the order of remand ordered by the lower appellate Court should not be interfered with. In my opinion, the expression "interests of justice" does not widen the power of the appellate Court to remand the matter in the sense that irrespective of whether it comes to a conclusion that the judgment and decree of the appellate Court are liable to be reversed or set aside or not if the appellate Court is of the opinion that the interests of justice required that there should be a fresh trial. IT can remand the suit for fresh disposal. Learned counsel for the respondent has not cited any authority to support his contention.