BASUDEV GOUDA Vs. NARSINGHA PATRA

JUDGEMENT

(1.) This is an appeal by the defendant against the order of remand passed by the appellate court in exercise of the power under O.41, R.23-A, C.P.C.

(2.) In the suit for injunction, a commissioner was deputed for finding out whether there is encroachment on the plaintiffs land on which it is alleged by the plaintiff that the defendant has started construction of the house. The trial court dismissed the suit. On appeal by the plaintiff the appellate Court found that the writ to the Commissioner has not been properly complied with. Accordingly, it set aside the decree and directed to hear the suit afresh after deputing another Commissioner for measurement.

(3.) Mr. S.S. Rao. the learned counsel for the appellant, submitted that the order is vitiated on account of the fact that the report of the Commissioner is not the only evidence in this case and there are other materials on record from which the appeal could have been decided by the appellate Court. Mr. B.K. Panda, the learned counsel for the respondent, submitted that the result of the entire suit depends upon the Commissioner's report and for the said purpose a Commissioner was deputed by the trial Court. Accordingly, the appellate Court is justified in remitting back the entire suit.