Order of remand to trail Court held illegal.

This appeal is preferred against a cryptic order of remand made by the District Judge, Pudukottai in A.S. No. 28 of 1979 directing the trial Court to dispose of the suit afresh after giving opportunity to the plaintiff to amend the plaint suitably for the relief of declaration of title and “giving opportunities to the defendant to put forth his evidence.”

2. The plaintiff, who is the appellant herein, filed a suit for permanent injunction claiming that he had purchased the property from one Ramaswamy Chettiar on 24th December, 1973, under a registered sale deed, and he has been in possession thereof by paying kist. Defendants, who are brothers, are having lands south of the suit property and since they started obstructing the plaintiff from ploughing the land, he has filed the suit for the relief of permanent injunction.

3. Defendants claim that the sale deed dated 24th December, 1973 is a concocted document and there has been no valid sub-division of the property. The cause of action is an imaginary one and they never obstructed the plaintiff, as alleged in the plaint.

4. The trial Court found that the suit being one for bare permanent injunction, it is only the factum of possession that has to be considered and on the merits of the matter, it held that the plaintiff was in possession of the property on the date of the suit and such a claim is supported by documents and therefore decreed the suit.

5. Defendant preferred an appeal in A.S. No. 28 of 1979. They also filed some documents before the lower appellate Court. As the lower appellate Court found that the pleading and documents indicated that there is some dispute regarding the title and in view of the parties agreeing for the matter to be remanded to the trial Court for fresh disposal, it allowed the appeal and remanded the matter to the trial Court accordingly, without any further discussion of the merits of the matter or on other aspects which require to be considered before an order of remand is made under Order 43, rule 1, Civil Procedure Code. Aggrieved against this order, the above Civil Miscellaneous Appeal has been preferred. In ground No. 3 of the memorandum of appeal grounds, it is stated as follows:

“The learned District Judge has failed to see that the appellant did not authorise the counsel to give any consent and even if a consent has been given by the counsel, it did not bind the appellant and it will not be a ground for remand.”

6. Mr. G. Subramanian, learned counsel for the appellant contends that there can be no remand under Order 41, rule 23, Civil Procedure Code on the basis of consent between the parties, and before an order of remand is made, the appellate Court is bound to apply its mind and find out whether the matter merits fresh disposal by the trial Court, and a mechanical order without setting aside the finding of the trial Court, having been discouraged by this Court in several decisions, the District Judge had not borne in mind any of the essential ingredients which are necessary before a matter is remanded. The learned counsel for the appellant submitted that if the consent given by the counsel on record is without authority, it would not be binding upon the parties to the proceedings.

7. Mr. K. Yamunan, learned counsel for the respondents/defendants pleads that there is no illegality in an order of remand being made on the basis of consent of parties, and secondly when,his is a consent order this C.M.A. is not maintainable, and thirdly consent given by the counsel in the best interests of his client is binding upon the parties to the proceedings unless it be shown that the counsel has no authority to give consent on behalf of his client, and in this case, counsel appearing for both the sides have made a joint endorsement for remanding the matter, there being no illegality in the order, it does call for any interference.

8. At the outset, it would be useful to consider whether the order passed by the lower appellate Court is based on a val