BOPPA SIVA BASAVAYYA Vs. INDUKURI VENKATARAMARAJU

JUDGEMENT

(1.) This is an appeal against the order of remand made by the Subordinate Judge, Narasapur, by his judgment dated 13th March, 1962. It arises in the following circumstances: The plaintiff-respondent instituted a suit for permanent injunction restraining the defendant and their men from taking their cattle over the bund of the plaintiff marked as A B G D in the plan filed along with the plaint. The suit was resisted by the defendants on various grounds. The trial Court framed several issues and after recording the evidence of the parties dismissed the suit with costs. The plaintiff preferred an appeal to the Subordinate Judge, Narasapur. The learned Subordinate Judge directed remand under Order 41, rule 23, Civil Procedure Code, as he thought that the material available is not sufficient to dispose of the appeal. It is this judgment of the Subordinate Judge that is now questioned in this appeal.

(2.) The principal contention of Mr. K. B. Krishna Murthy, the learned Counsel for the appellant, is that the ground on which the remand is directed is not valid. Nor does it fall within the ambit of rule 23 of Order 41. I find sufficient force in this contention. The learned Subordinate Judge in more places than one observed that the material available to him is not sufficient and therefore he felt that some more material is necessary for proper disposal of the appeal. I do not think that can be a ground for remand. It must be remembered that under Order 41, rule 23, Civil Procedure Code, remand can be ordered only when the trial Court has disposed of the suit on a preliminary point and the decree is reversed in appeal by the appellate Court, or where the appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case. It is only in such cases that a remand can be directed. The plaintiff had filed in I. A. No. 951 of 1960 before the trial Court requesting it to make a local inspection. That petition was dismissed by the learned District Munsif. That request was not pursued in the appellate Court. On the other hand, the plaintiff filed I.A No. 171 of 1962 for the appointment of a Commissioner to measure the lands, prepare a plan drawn to scale and for locating whether the bund is within the survey numbers of the plaintiff or whether it is a part of the Government poramboke. This request obviously was not made in the trial Court.

(3.) The learned Subordinate Judge however thought that it is absolutely necessary to have it inspected by a Commissioner and to have a plan drawn to scale in the interest of justice and for a proper disposal of the suit. If he was of that opinion he could have considered that request under Order 41, rule 27 (c), Civil Procedure Code. That can hardly be a ground for remand under rule 23. It must be remembered that when issues are properly framed and burden of proof properly cast, it is for the party concerned to establish his case. Remand cannot be utilised for the purpose of filling in gaps or lacunae. If the material is not adequate or sufficient to support either the plaintiff or the defendant, it does not become the duty of the Court to direct further enquiry into the facts. In the interests of justice if the Court thinks that some witness must be examined, or measurement taken, it has ample power under Order 41, rule 27 or rule 25 of Order 41 of Civil Procedure Code, but that is quite different from utilising the power of Order 41, rule 23 of remand. I am therefore satisfied that the order of remand cannot be allowed to sustain.