The appellate Court must adhere to the prescribed procedure for allowing additional evidence and remanding matters to the trial Court.

JUDGMENT

(Prayer: This Civil Miscellaneous Appeal is filed under Order 43 Rule 1(u) of C.P.C., against the judgment and decree made in A.S.No.14 of 2018 dated 04.04.2022 on the file of Additional District Court, (FTC), Theni, remanding the judgment and decree made in O.S.No.11 of 2013, dated 20.06.2017, on the file of the Subordinate Court, Theni.)

This Civil Miscellaneous Appeal is filed challenging the judgment and decree of the Additional District Court, (FTC), Theni, made in A.S.No.14 of 2018 dated 04.04.2022, to remand the matter to the trial Court.

2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court.

3. The brief facts, leading to the filing of this Civil Miscellaneous Appeal, are as follows:-

The plaintiffs have laid a suit in O.S.No.11 of 2013 for declaration and injunction against the defendant. The suit has been laid on the basis of the sale deed dated 24.06.1952, followed by revenue records and sale deed dated 05.03.2010. The suit is proceeded as if based on the above sale deed, the plaintiffs become absolute owner of the property and enjoyment of the same. The defendant without any title to the property, prohibiting the plaintiffs'' possession. Hence, the suit has been filed.

4. Before the trial Court, the defendant denying the title of the plaintiffs and the revenue records also disputed by the defendant.

5. Based on the above pleadings, the trial Court has framed the following issues:

“1. Whether the 2nd item of the suit property belongs to the first plaintiff, whether the 3rd item of suit property belongs to the 2nd plaintiff and whether the fourth item of property belongs to the third plaintiff?

2. Whether the suit schedule property belongs to the defendant?

3. Whether the plaintiffs are entitled to the relief of permanent injunction?

4. To what other reliefs the plaintiffs are entitled to?”

6. On the side of the plaintiffs, one witness was examined as P.W.1 and 44 documents were marked as Ex.A.1 to Ex.A.44. On the side of the defendant, one witness was examined as D.W.1 and 16 documents were marked as Ex.B1 to B.16.

7. The trial Court after appreciating the entire evidence has finally dismissed the suit. Challenging the same, the first appeal was filed before the Additional District Court, (FTC), Theni in A.S.No.14 of 2018. During the pendency of the appeal, an application for reception of additional evidence was filed before the Additional District Judge, (FTC), Theni in I.A.No.3 of 2019 for marking the release deed dated 04.05.1981.

8. The learned Additional District Judge, (FTC), Theni allowed the said application. While allowing the said application, the Additional District Judge set aside the decree and judgment of the trial Court, even without going into the merits of the matter and therefore, the judgment and decree of the appellate Court has to be set aside merely on the ground that the additional evidence is allowed and the matter has been remanded back to the trial Court once again, to decide the issue afresh, after giving opportunity to the plaintiffs. Challenging the same, the present appeal came to be filed.

9. Heard the learned counsel appearing on either side and perused the materials available on record.

10. On a perusal of the order of the first appellate Court, this Court is of the view that such order passed by the first appellate Court in the rank of the District Judge is nothing, but non-application of mind. Such order has been passed without adverting to the relevant provisions of law, while allowing an application for additional evidence during the appeal stage. It is relevant to note that under Order 41 Rule 23 of C.P.C., the appellate Court can remand the matter when the trial Court has disposed of the suit only upon a preliminary point and the decree is reversed in the appeal, the appellate Court may by order remand and may further direct what is