An appellate court must mandatorily dispose of pending interlocutory applications, particularly regarding the remission of a Commissioner's report under Order XXVI Rule 10(3) CPC, before deciding a case on its merits, especially when a superior court has previously directed the appellate court to allow such evidence.

J U D G M E N T

With consent, the matter is taken on board for final hearing.

2. The supplemental defendants in a suit for fixation of boundary have come up in the present appeal aggrieved by the procedural irregularity committed by the first appellate court in disposing of the appeal. O.S. No. 70 of 2012 was filed for fixation of boundary and prohibitory injunction. After a full-fledged trial, the suit was decreed. While so, the original defendant expired and the legal heirs were impleaded as supplemental defendants, who have preferred the appeal.

3. The appellate court, by judgment dated 06.10.2020, remanded the suit for fresh consideration. The said order of remand was challenged by the plaintiffs in FAO(RO) No. 2 of 2021, and this Court, by judgment dated 06.01.2022, found that the judgment remanding the matter was basically resulting in a second round of litigation and therefore, it may not be feasible to order a remand to the trial court for a third round of litigation. Therefore, the matter was sent back to the first appellate court itself, making it clear that the appellate court can permit the parties to adduce additional evidence by way of a survey commission, who may be directed to locate the property chronologically according to the document of transfer.

4. In pursuance of the said direction, an Advocate Commissioner was appointed to identify the property with the help of a Surveyor. Accordingly, the Commissioner identified the property and filed C3 and C4 reports. Once the report was filed, the appellants raised objections to the report by requesting the appellate court to permit them to examine the Commissioner. Similarly, the plaintiffs also filed an application to remit the report of the Advocate Commissioner. The first appellate court, surprisingly, did not consider either of the requests and instead considered the case on merits and found that the plaintiffs were entitled to succeed and accordingly decreed the suit, against which the present appeal is filed.

5. Accordingly, the following substantial questions of law are framed for consideration:

1) Whether the first appellate court was justified in rendering a judgment without deciding the interlocutory application for remitting the report of the Commissioner?

2) Whether the first appellate court has properly complied with the provisions of Order XXVI Rule 10(3) of the Code of Civil Procedure, 1908?

3) Whether the first appellate court has complied with the order of remand passed by this Court?

6. Heard Sri. R. Parthasarathy, learned counsel appearing for the appellants and Sri. T. Sethumadhavan, learned Senior Counsel appearing for the respondents instructed by Smt. Preethi P.V.

7. On considering the submissions raised across the Bar, this Court is of the considered view that the first appellate court was not justified in undertaking the task of considering the case on merits without permitting the parties to adduce evidence. The order of remand passed by this Court in FAO(RO) No. 2 of 2021 being specific in nature, which obliged the first appellate court to allow the parties to adduce additional evidence, it was obligatory on the part of the first appellate court to permit the appellants to adduce evidence by examining the Advocate Commissioner. Similarly, when an application for remitting the report of the Commissioner was lodged by the plaintiffs themselves, before deciding to accept the report in terms of Order XXVI Rule 10(3) of the Code of Civil Procedure, 1908, the first appellate court ought to have passed separate orders on the application. Having failed to do so, there is a clear abdication of duty on the part of the first appellate court, which necessitates a remand back to the first appellate court. Accordingly, the