PATTAMMAL AND ORS. Vs. YASOTHA AMMAL AND ORS.

JUDGEMENT

(1.) THE defendants are the appellants before this Court. The first plaintiff is the widow of Kuppuswamy Chettiar and the plaintiffs 2 and 3 are the daughter and son. The plaintiffs filed a suit for declaration of title to the suit properties and for recovery of possession of the same from the defendants contending that the defendants were in permissive occupation of the suit properties during the lifetime of the first plaintiff's husband and after his death they have fraudulently asserted title to the suit properties and they should be evicted and possession given to the plaintiffs. The defendants filed written statements contending that they are not in permissive occupation of the suit properties and they are in possession in their own right. The trial Court held that the plaintiffs have not proved their title to the suit properties and dismissed the suit. On appeal, it was held that it is necessary to ascertain whether the properties in possession of the defendants and the property claimed by the plaintiffs are one and the same and an opportunity should be given to the plaintiffs and the defendants to localise the suit property by proper measurements and for this purpose remanded the suit. Aggrieved against the order of remand, the defendants have filed this appeal before this Court.

(2.) THE learned Counsel for the appellants contended that the first Appellate Court exercised the power of remand without recording a clear finding that the judgment and decree of the trial Court is erroneous and is liable to be reversed or set aside and so long as that finding has not been arrived at by the Appellate Court, there is no scope for remanding the suit to the trial Court for a fresh disposal. It is further contended that inasmuch as the plaintiffs having come forward with a specific case that the suit properties are comprised in Cadastre No. 928 and having failed to prove the same, the Appellate Court by this order of remand cannot give an opportunity to the plaintiffs to fill up the gaps in evidence and remove the lacuna in the plaintiffs' case and the order of remand thus works out to great prejudice to the defendants and has to be set aside. In support of this contention learned Counsel for the appellant relied on four decisions of this Court reported in Ramakrishna v. Rangayya : AIR 1954 Mad 783 , Balasubramania Ayyar v. Subbiah Thevar and Anr., I.L.R. (1964) Mad. 586 :, 78 L.W. 105 :, A.I.R. 1965 Wad. 417; Subramaniam and Anr. v. Kaliammal and Ors. : (1968) 2 MLJ 548 and Sowdammal (alias) Sundarammal v. Veerammal and Ors. : (1970) 1 MLJ 205 .

(3.) THE power of remand under Order 41, Rules 23 and 23 -A can be exercised by the Appellate Court if it comes to the conclusion that the judgment and decree of the trial Court are erroneous on facts or on law and are therefore, liable to be reversed or set aside. After coming to such a conclusion, if the Appellate Court is of opinion that the interests of justice require that there should be a fresh trial, it can remand the suit for fresh disposal. The discretion of the Appellate Court to order re -trial is unfettered. But this discretion is not to be exercised in arbitrary manner; but it should be exercised on sound judicial principles. A remand cannot be ordered to enable a party to fill up the lacuna in the case. But where the party was denied an opportunity of producing all the evidence they desired to produce before the trial Court, then the Appellate Court, in exercise of the discretionary powers to further the ends of justice may order remand or re -trial of the case. Order 41, Rule 23 -A was introduced in the Code by Amendment Act CIV of 1976. Prior to the enactment of the above amending Act, Courts have held that under Order 41, Rule 23, an order of remand can be passed only on the reversal of the decree disposing of a suit on a preliminary point and in other cases where the judgment of the trial Court is reversed on merits and the case is remanded for re -trial to the trial Court, it can be done by the Appellate Court only in exercise of its inherent powers under Section 151, Civil Procedure Code. Now under Order 41, Rule 23 -A the whole case can be remitted to the trial Court where the judgment reversed is not on a preliminary point but one on merits. Thus Order 41, Rule 23 -A has widened the power of the Appellate Court to remit the case to the trial Court for re -trial. But even the power under Order 41, Rule 23 -A can be exercised by the Appellate Court only after recording a finding that the judgment and decree of the trial Court are erroneous and are liable to be reversed or set aside.