Scope of power of appellate Court for passing order of remand.

The defendants are the appellants before this Court. The first plaintiff is the widow of Kuppuswamy Chettiar and the plaintiffs 2 and 3 are the daughter and son. The plaintiffs filed a suit for declaration of title to the suit properties and for recovery of possession of the same from the defendants contending that the defendants were in permissive occupation of the suit properties during the lifetime of the first plaintiff's husband and after his death they have fraudulently asserted title to the suit properties and they should be evicted and possession given to the plaintiffs. The defendants filed written statements contending that they are not in permissive occupation of the suit properties and they are in possession in their own right. The trial Court held that the plaintiffs have not proved their title to the suit properties and dismissed the suit. On appeal, it was held that it is necessary to ascertain whether the properties in possession of the defendants and the property claimed by the plaintiffs are one and the same and an opportunity should be given to the plaintiffs and the defendants to localise the suit property by proper measurements and for this purpose remanded the suit. Aggrieved against the order of remand, the defendants have filed this appeal before this Court.

2. The learned counsel for the appellants contended that the first Appellate Court exercised the power of remand without recording a clear finding that the judgment and decree of the trial Court is erroneous and is liable to be reversed or set aside and so long as that finding has not been arrived at by the Appellate Court, there is no scope for remanding the suit to the trial Court for a fresh disposal. It is further contended that inasmuch as the plaintiffs having come forward with a specific case that the suit properties are comprised in Cadastre No. 928 and having failed to prove the same, the Appellate Court by this order of remand cannot give an opportunity to the plaintiffs to fill up the gaps in evidence and remove the lacuna in the plaintiffs’ case and the order of remand thus works out to great prejudice to the defendants and has to be set aside. In support of this contention learned counsel for the appellant relied on four decisions of this Court reported in Ramakrishna v. Rangayya1, Balasubramania Ayyar v. Subbiah Thevar and another2; Subramaniam and another v.Kaliammal and others3 and Sowdammal (alias) Sundarammal v. Veerammal and others4.

3. The learned counsel for the respondents contended that Order 41, rule 23-A, Civil Procedure Code, introduced under Act CIV of 1976, came into force with effect from 9th September, 1976 to widen the powers of the Appellate Court to remand the case for retrial and even the words “in the interests of justice” occurring in Order 41, rule 23 have been omitted under this rule and such being the wide powers conferred on the Appellate Court under this newly introduced rule the order of remand passed by the Appellate Court is valid and should be upheld.

4. The power of remand under Order 41, rules 23 and 23-A can be exercised by the Appellate Court if it comes to the conclusion that the judgment and decree of the trial Court are erroneous on facts or on law and are therefore, liable to be reversed or set aside. After coming to such a conclusion, if the Appellate Court is of opinion that the interests of justice require that there should be a fresh trial, it can remand the suit for fresh disposal. The discretion of the Appellate Court to order re-trial is unfettered. But this discretion is not to be exercised in arbitrary manner; but it should be exercised on sound judicial principles. A remand cannot be ordered to enable a party to fill up the lacuna in the case. But where the party was denied an opportunity of producing all the evidence they desired to produce before the trial Court, then the Appellate Court, in exercise of the discretionary powers to further the ends of justice may order remand or re-tr