Lower Appellate Court ought to have decided the appeal one way or the other.

C.NAGAPPAN, J.

This civil miscellaneous appeal is preferred against the order under Rule 23 of Order XLI CPC remanding the case in A.S.No.161 of 1999 by the II-Additional District Judge, Pondicherry. The respondent before the lower appellate court, who is the defendant in the suit, has preferred this appeal.

2.The respondent in the present appeal, who is the plaintiff, filed a suit in O.S.No.1789 of 1996 on the file of III-Additional District Munsif, Pondicherry, for permanent injunction restraining the appellant herein, who is the defendant in the suit, from interfering in his possession in the plaint schedule property. It is the case of the plaintiff that he and his parents are in occupation and enjoyment of the suit property from 1.6.1960 onwards and they have right of adverse possession over the property and the defendant is trying to interfere with their possession. Denying the plaintiff's case, the defendant contended that the plaintiff, who was a tenant in the suit property, was directed by the police officer to handover the possession of the suit property to the defendant and accordingly, the plaintiff vacated the suit property and the defendant is in possession of the suit property as on date and since the plaintiff did not seek for relief of declaration of his title to the suit property, the suit is liable to be dismissed. The trial court held that the suit for permanent injunction without seeking the relief of declaration of title is not maintainable and the plaintiff is not in possession of the suit property on the day of filing of the suit and dismissed the suit. The plaintiff preferred an appeal in A.S.No.161 of 1999 to the District Court, Pondicherry and the II-Additional District Judge, who disposed of the appeal by passing an order under Rule 23 of Order XLI CPC, remanded the case to the trial court. Aggrieved by the same, the present appeal is filed.

3.Heard the learned counsel for the appellant and the respondent.

4.The point for determination is whether the order of remand passed by the lower appellate court is sustainable.

5.Two reasons have been pointed out for remanding the matter. They are:

(a) The trial court did not consider the report of the Advocate Commissioner and the connected documents thereof and the Advocate Commissioner was not examined.

(b) The name of the plaintiff, by record, being Thangavel and his calling name being Apparsamy, the plaint has to be amended incorporating both the names.

6.The plaintiff filed an application in I.A.No.5030 of 1996 under Order XXVI Rule 9 CPC to appoint a Commissioner to inspect the suit property and file a report thereon and accordingly, the Commissioner filed his report. It is stated that the defendant also filed his objections to the Commissioner's Report. Under Order XXVI Rule 10 CPC, the report of the Commissioner and the evidence taken by him shall be the evidence in the suit and shall form part of the record. The lower appellate court took exception for non consideration of the commissioner's report and the connected documents by the trial court. The lower appellate court held that the commissioner's report ought to have been marked as a document and the Advocate Commissioner ought to have been examined as a witness in the trial of the suit and on that score concluded that the matter has to be remanded.

7.As already seen, the report of the commissioner and the evidence taken by him are part of the record in the case. Even if there is necessity of examining the Advocate Commissioner as a witness, it could be done by the appellate court under Order XLI Rule 28 CPC. In short, all the required material were very much available before the lower appellate court and that being so, it ought to have decided the appeal one way or the other and there is no justification for remanding the matter on that ground.

8.The second reason pointed out for remand is the need for amendment of plaint to incorporate both the names of the plaintiff. An application for amendme