Remand of matter under rule 23 when justified.

This is an appeal by the plaintiff against an order of remand made by the learned Subordinate Judge of Coimbatore. The main contest between the parties is whether the house in respect of which partition was sought was the joint family property of Sreeranga Chettiar, the deceased father-in-law of the plaintiff or his separate property. If it was joint family property, the plaintiff would have a larger share than if it was a separate property, because if it was joint family property the plaintiff’s deceased husband Nanjappa Chettiar would in his own right have been entitled to one-third share and the plaintiff would be further entitled to the share of Sreeranga Chettiar along with the others. The learned District Munsif, who tried the suit, on a consideration of the evidence, accepted the case of the plaintiff. On appeal preferred by the first defendant, the learned Subordinate Judge felt some difficulty in deciding the case and he thought that in the interests of justice, the suit should be remanded to the trial Court to allow both parties to let in more satisfactory evidence. Actually an endorsement was made by the learned Counsel for the defendants in the trial Court that the defendants were not adducing any oral evidence. The only document that was marked on their side was Exhibit B-1. Still a complaint was made in the grounds of appeal that the defendants were not allowed sufficient opportunity to adduce evidence and actually I.A. No. 269 of 1965 was field to receive as additional evidence some receipts for payment of house tax in the name of Sreeranga Chettiar. With reference to these, the learned Subordinate Judge recognised that in view of the endorsement on the plaint by the learned Counsel for the defendants, he was unable to hold that the appellant was denied any opportunity by the trial Court to adduce evidence. But in view of his earlier inclination to remand the suit, he observed that it was a fit case for remand even apart from I.A. No. 269 of 1965. He formally allowed I.A. No. 269 of 1965 on the first defendant paying Rs. 35 to the other side.

The order of remand is opposed to the terms of Order 41, rule 23, Civil Procedure Code, as amended by this Court and uniformly interpreted by decisions of this Court. Note: Veeramma v. Laksymayya1, Chettiah Muaaliar v. Govinda Pandithan2, Thirumalaiswami Mudali v. Periasami Mudali3, Ramakrishna v. Rangayya4, Amhed Rowther v. Bathumal Beevi5, Balasubramania Aiyar v. Subbiah Thevar6, Chinnam Ambalam v. Ramiah Maniam7, Achamrnd v. Krishtama Naidu8, Subramania v. Kaliammal9, Order 41, rule 23, as amended in Madras, states-

“Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed on appeal, 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, the Appellate Court may by order remand the case..........”

This is the only provision for remand. The following four rules, Order 41, rules 24, 25, 26 and 27, deal with a situation where the appellate Court has to keep the appeal on its file and dispose it of. Order 41, rule 24 deals with a case where the evidence on record is sufficient to enable the appellate Court to pronounce judgment; the appellate Court may, after re-settling the issues finally determine the suit. Order 41, rule 25 deals with a case where it is necessary to take additional evidence on the fresh issues which are to be framed by the appellate Court. The appellate Court may have the evidence recorded and findings submitted by the trial Court but should dispose of the appeal itself finally. Order 41, rule 27 deals with a situation where the parties were prevented from adducing necessary evidence before the trial Court and with a case where the appellate Court itself wants fresh evidence to be recorded. There again the appellate Court has to keep the appeal on its file. It is therefore cl