JUDGMENT :

1. The appellant herein is the 1st defendant, who filed a suit in O.S.No.249 of 2005 on the file of the Principal District Munsif at Tiruchengode, against the respondents/plaintiff and defendants 2 & 3, for the relief of permanent injunction and other consequential reliefs.

2. The appellant and the respondents 2 to 4 contested the suit.

3. After full trial, the trial Court decreed the suit in favour of the 1st respondent/plaintiff. Aggrieved by the decree, the appellant & the 4th respondent/the defendants 1 and 4 preferred an appeal in A.S.No.25 of 2013 before the Subordinate Court Tiruchengode. On hearing both sides, the appeal was allowed and the case was remanded to the trial Court for fresh trial by framing the additional issues, giving sufficient opportunities to the parties to adduce further oral and documentary evidence and to dispose the case freshly. Aggrieved by the order of the appellate Court, the appellant/1st defendant has preferred the present appeal before this Court.

4. The question of law that arises for consideration is as to “whether the order of remand passed by the learned First Appellate Judge with regard to framing of additional issue and to adduce further evidence and to dispose the case is sustainable under Order 41 Rule 23 and 23-A of CPC?”

5. The learned counsel for the appellant/D1 submitted that the plaintiff is the absolute owner of the suit property in S.No.25 /4A and the defendants are residing in S.No.24 in Natham poromboke, but they caused trouble in the plaintiff's enjoyment. The plaintiff took steps to fix the boundary line by fixing service stones, but the same was removed by the defendants. So he filed the suit.

6. The defendants contested the suit stating that their ancestors enjoying the land in and around their house as backyard pial & tethering cattle, in which the plaintiff has no right. But the plaintiff attempted to fix the boundary stones. Hence, the defendants objected.

7. The issues were framed and both sides oral and documentary evidence were adduced.

8. On considering all the evidence, the Trial Court decreed the suit in favour of the 1st respondent/plaintiff. Aggrieved by the order of the trial Court, the defendants 1 and 4 preferred appeal before the Subordinate Court, Tiruchengode in A.S.NO.25 of 2013 and while disposing of the said appeal, the learned First Appellate Judge concluded that the trial Court ought to have framed necessary issues regarding the nexus between the title deed and patta of the plaintiff, so as to find out the lawful possession over the entire suit property and the First Appellate Court has also framed two additional issues and remanded the matter to trial Court to decide those issues. The entire suit was remanded to the trial Court for fresh trial under Order 41 Rule 23 CPC. Aggrieved by the judgment of the First Appellate Court, the appellant/1st defendant has preferred this appeal.

9. At the time of arguments, the learned counsel for the appellant submitted that the First Appellate Court itself has ample power to decide all the issues and even if there is any commission and omission made by the trial court it could be corrected by the First Appellate Court under Order 41 Rule 23 CPC. For that, the learned counsel for the 1st respondent relied the following authorities:

(i) Hon'ble Division Bench of this Court, judgment in the case of V.Munusamy (deceased ) and others Vs.M.Suguna, reported in 2005(1) CTC 107, where in it has been held as follows:

3. ...... Courts have held that only in exceptional cases where the judgment of the trial Court is wholly unintelligible or incomprehensible the appellate Court can remand the matter for fresh disposal. Order 41, Rule 23 give ample power to the lower appellate Court to decide all issues, including appointment of a commission for local inspection, secure finding from the trial Court. Even if certain mistakes crept in the order of the trial Court, the same can be rectified by the appellate Court itself, unles