Remand of case by Appellate Court for fresh trial without setting aside judgment and decree of trial court is not permissible.

P. SATHASIVAM, J.

( 1 ) AGGRIEVED by the order of remand made by the lower appellate court in a. S. No-316of 1987, the plaintiff has filed the above Civil Miscellaneous Appeal before this Court. The appellant/plaintiff has filed in O. S. No. 6993 of 1983 before the XIth Assistant Judge, City Civil Court, madras praying for a decree for mandatory injunction directing the defendant. Punjab National Bank to give credit of a sum of Rs. 20,000/- deposited on 25. 4. 83 in his current account maintained by the Bank and direct the defendant to pay the plaintiff the sum of Rs, 20,000/-with interest thereon at the rate of 12 per cent per annum from the date of decree in the suit until realisation. By judgment and decree dated 8. 4. 85, the learned trial Judge decreed the suit as prayed for with costs. The defendant-Bank filed an appeal in A. S. No. 316 of 1987 before the principal City Civil Judge, Madras. While the appeal of the defendant is pending before the lower appellate Court, the plaintiff has filed C. M. P. No. 6 of 1988 under Order rule 17 read with Section 40 (2) of Specific relief Act for amendment of his plaint in O. S. No. 6993 of 1983. Even though the appellant/plaintiff has prayed for decree for mandatory injunction and having obtained decree as prayed for in order to avoid technical objection, the plaintiff has filed the said application for amendment of the plaint and prayed for a money decree in respect of Rs. 20,000/- paid by him. After holding that by virtue of the present claim for amendment, the plaintiff is not introducing any fresh cause of action and it will not affect the defence of the defendant in the interest of justice, allowed the said amendment. Inasmuch as the plaintiff has filed the said application only at the appellate stage when the appeal was pending before the lower appellate court, the Court below has directed the plaintiff to pay a sum of Rs. 250a towards costs to the other side. After allowing the said application for amendment and in order to give an opportunity to both parties, remanded the case to the trial Court. The learned Judge has also permitted the defendant to file additional written statement, if necessary and also permitted both parties to lead fresh evidence.

( 2 ) MR. K. Kesavanath Davey, learned counsel for the appellant, by pointing out the relevant provision, namely, Order 41, Rule 23 of the Code of Civil Procedure, contended that in the absence of setting aside the judgment and decree pf the trial Court, the remand made by the lower appellate Court cannot be sustained. The circumstances in which the appellate Court can remand the matter to the trial court has been explained in Order 41, Rules 23 to 29, C. P. C. In our case, the lower appellate Court after allowing the amendment petition of the plaintiff, which according to the plaintiff, is only a formal and it requires no further evidence or adjudication, without assigning any reason or reasons for setting aside the judgment and decree of the trial Court, merely remanded the case to the trial Court with a liberty to both parties to lead fresh evidence. I have already stated that elaborate procedure and. the circumstances in which the matter has to be remanded to the trial Court have been enumerated in Order 41, Rules, 23 to 29, C. P. C. A perusal of the said clauses shows that irrespective of allowing the amendment petition, the appellate Court itself can deal with the matter and dispose of the same one way or other. However, without setting aside the judgment and decree of the trial court, it would not be possible for the appellate Court to remit the case to the trial Court in order to give an opportunity to the parties. Such remand without following the procedure enumerated in Order 41, Rules 23 to 29 has been depricated in so many decisions of this court. In this regard, the learned Counsel for the appellant has very much relied on a judgment of Venkataraman, J. , reported in achammal v. Kistama Naidu. After cons