( 1 ) HEARD. Admit. By consent, heard forthwith. The following substantial question of law arise for consideration in the matter:"when a suit is decreed ex parte solely on the ground that the affidavit evidence of the plaintiff had gone unchallenged and without analysing such evidence, whether the appellate Court, in the appeal arising from such a decree, should while setting aside the same, remand the matter to the trial Court or proceed to decide the same finally?

( 2 ) THE judgment and decree passed by the lower appellate Court is sought to be challenged on the ground that the lower Appellate Court having found that the trial Court had decreed the suit solely on the basis of the affidavit evidence filed by the plaintiff, without even analysing such evidence in any manner and therefore being liable to be set aside, it could not have proceeded to consider the matter on merits but ought to have remanded the matter to the trial Court for being disposed of in accordance with the provisions of law. There is no serious contest by the respondents to the above proposition canvassed by the appellant.

( 3 ) THE undisputed facts relevant for the decision are that, the appellant filed a suit for injunction and also regarding the entries in the record of rights in respect of the suit property. After service of the summons to the respondent, the suit proceeded ex parte and consequently the appellant filed the affidavit evidence in terms of the Order 18, Rule 4 of the Code of Civil Procedure. The trial Court then proceeded to dispose of the suit with the following observations in its judgment:"5. Affidavit in evidence is filed by father Victor Rodrigues, on behalf of the plaintiff and in the capacity of constituted attorney of the plaintiff. Along with the affidavit various documents such as the matriz certificate, survey records, old as well as new and the survey plan etc. are exhibited. Father Victor has solemnly affirmed the case of the plaintiff and the defendants have taken no defence. It is therefore held that the plaintiff has established its case. "

( 4 ) APART from the para 5 quoted above, the trial court did not bother to analyse the evidence produced by the appellant to ascertain whether the plaintiff had made out the case for grant of relief asked for. Being aggrieved by the said decree, the respondent filed the appeal. While allowing the appeal, the trial Court dismissed the suit. In fact, once it was revealed to the lower Appellate Court that the trial court had decreed the suit without application of mind to the materials placed on record by the appellant, the appropriate procedure would have been to set aside the judgment and decree passed by the trial Court and to remand the matter to the trial Court. Undisputedly, there was no finding arrived at by the court of original jurisdiction on the point of entitlement or disentitlement of the plaintiff to get a decree in the matter in relation to the dispute which was sought to be raised in the suit. Undisputedly, the lower Appellate Court proceeded to dismiss the suit merely observing that the suit is barred by the law of limitation.

( 5 ) UNDOUBTEDLY, the powers of the Appellate Court similar to that of the Court of original jurisdiction. The Section 107 (1) (a) of the Code of Civil Procedure clearly empowers the Appellate Court to determine the case finally. At the same time, Clause (b) thereof empowers the Appellate Court to remand a case wherever occasion arises for such an order. At the same time, order 41 of the C. P. C. prescribes certain methodology for exercise of such powers by the Appellate Court.

( 6 ) THE Order 41, Rules 23 and 24 of C. P. C. prescribe relevant procedure to be followed while disposing an appeal. While Rule 23 speaks of remand, the Rule 24 deals with final disposal of the case on merits. Accordingly, the latter Rule provides that when the evidence on the record is sufficient to enable the appellate Court to pronounce judgment, the Appellate court may a

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