Sanjeeva Row Nayudu, J.
1. This appeal is directed against the judgment and order of the Additional District Judge, Anantapur, dated 5th February, 1958, in A. S. No. 64 of 1957, on the file of the said Court, ordering remand of the suit to the Court of first instance, namely the Court of the District Munsif of Anantapur for fresh disposal.
2. The question for determination in this appeal is whether the order of remand passed by the Additional District Judge is legally sound and supportable.
3. The plaintiff brought the suit O. S. 275 of 1955 out of winch this present appeal has arisen for a declaration of his rights as well as that of the village community to use the public pathway indicated in the plaint plan, and to the peaceful enjoyment thereof as well as the open space around a certain fire pit situated in the area, and for an injunction restraining the defendant from interfering with the said rights, and for a mandatory injunction for the removal of the carts of the defendant from the place marked 'C' in the plaint plan and to close up the new and unauthorised pathway marked AB in the plaint plan.
The defendant contested the suit on various grounds. Based on the respective contentions in the pleadings, the learned District Munsif, who tried the suit, framed issues in which the question whether the defendant has obstructed the plaintiff in the exercise of his right of way, and therefore the latter was entitled to the injunction prayed for, was raised, besides the question whether the plaintiff had acquired a right of way by prescription over the plot marked 'C' in the plaint plan.
After a careful and elaborate consideration of the evidence adduced on either side in the case, the learned District Munsif came to the conclusion that the plaintiff as well as the village community had acquired a right of way through the plot 'C' in the plaint plan, which is part of a public pathway. He also found that the defendant had obstructed the plaintiff in the exercise of his right of way and that, therefore, the plaintiff was entitled to the injunction prayed for. So holding, the learned District Munsif decreed the suit with costs,
4. Against this judgment and decree the defendant preferred an appeal in A. S. No. 64 of 1957 in the Court of the District Judge, Anantapur, which was heard and disposed of by the Additional District Judge, Anantapur. In that judgment, the learned Additional District Judge expressed the opinion that the documents produced in the case did not conclusively support the case of either party.
Having so opined, the learned Additional District Judge proceeded to examine the oral evidence and to assess and appreciate the same. He, however, did not in fact examine the oral evidence in the case, but, instead, allowed I. A. No. 141/57 filed in the appeal before him by the appellant, the defendant in the suit, for additional evidence under Order 41, Rule 27, C. P. C., and decided to receive a certain copy of a registered sale deed filed with it, in evidence and in doing so made the following order:
'The appellant was unable to adduce this document in evidence in defence notwithstanding his due diligence. I am of the view that this must go in record. Under these circumstances, I have no alternative except to set aside the judgment and decree of the lower Court and remand the matter for fresh disposal.'
So holding, the learned Additional District Judge allowed the appeal and set aside the decree and judgment of the Court below, and remanded the matter to the Court of first instance for fresh disposal in the light of the observations made in his judgment.
5. It has been more than once pointed out by this Court that the power of remand exercisablc by the appellate Courts should be sparingly exercised and should strictly be in conformity with Order 41, Rule 23, C. P. C., as amended by the Madras Amendment in force in this State, which is in the following terms:
'Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, or where the appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case, the appellate Court may by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded and shall send a copy of its judgment and order to the Court from whose decree tne appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trill shall, subject to all just exceptions, be evidence during the trial after remand.'
It may be seen from this rule that it is only in two contingencies that an appellate Court would be justified in ordering remand of a suit.
(1) the Court below must have dispowd of the suit on a preliminary point and the appellate Court considered that the decision of the Court below on the preliminary point was wrong and bad to be reversed and consequently the suit had, accordingly, to be heard and disposed of on the merits of the various issues left undetermined by reason o the disposal on the preliminary issue,
(2) the appellate Court after fully hearing the appeal and considering the entire facts and cir cumstances of the case, must have come to the conclusion on the merits of the appeal, that the decree under appeal should be reversed or set aside and should, thereafter, also have come to the decision that it was necessary in the interests of justice to remand the case.
6. In the case under appeal, the first Court did not dispose of the suit on a preliminary point, On the other hand, it considered all the aspects of the matter and save findings on all the issues arising in the case. Hence, the first of the above contingencies is not attracted. As regards the second contingency, the learned Additional District Judge had not, apparently, heard the appeal in full and could not, therefore, have applied 1m mind judicially to all the available evidence In the case.
He appears to have first of all, examined the documentary evidence and to have found that it was inconclusive, and then proceeded to scrutinise the oral evidence in the case to see if in the light of that evidence a decision could be reached. But instead of fulfilling the task be set himself, the learned Additional District Judge, apparently, did not examine the oral evidence at all, but by reason of the fact that he had decided to admit a certain document as additional evidence under Order 41. Rule 27, C. P. C., he, ipso facto ordered the remand of the suit to the Court of first instance.
It is, therefore, clear that the learned Additional District Judge had not come to the stags when, after he had judicially considered the entire evidence and the facts and circumstances of the case he had come to the conclusion that the decree under appeal should be reversed or set aide; and since he had remanded the suit before he had reached that stage and before he had conic to that conclusion, the order of the learned Additional District Judge, remanding the suit is clearly unsustainable.
7. That apart, the mere fact that the appellate Court decides, rightly or wrongly, to receive some additional evidence, cannot at all be a ground for ordering remand of the suit. A remand is an extreme measure to take, for, it has the effect of putting the parties back to the same position which they had occupied at the commencement of the litigation, after a number of years had been spent in it, and after a good deal of expenditure had been expended on the same. It is for this reason that the Civil Procedure Code has provided various expedients which are intended to avoid a remand. For Instance, there is provision In Order 41, Rules 25 and 26, C. P. C, which are in the following terms:
'25. Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required;
and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor.
26(1) Such evidence and findings shall form part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding.
(2) After the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal.' It may be seen that these Rules provide for the appellate Court to frame an issue or issues, which, in its opinion, the lower Court should have framed, and refer the same or any question of fact left undetermined by the trial Court to be tried or determined by the said Court, taking the additional evidence required for that purpose and to submit the evidence so recorded and the finding thereon together with the reasons therefor, to the appellate Court.
The appellate Court, while retaining the appeal on its file all this time, has thereafter, to dispose of the same in accordance with Order 41, Rule 26, C. P. C., in the light of the evidence so recorded, and the finding so reached by the trial Court, and the objections, if any, to that finding, filed by the parties. These Rules thus provide for the contingency of certain issues or certain questions of fact having been found not to have been tried or determined by the Court of first instance.
8. Again, Order 41, Rule 27, C. P. C., provides expressly, for the reception of additional evidence in appeal, provided tha conditions laid down in the rule are satisfied. This Rule is in the following terms :
'27(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. Bat if--
(a) the Court from whose decree the appeal is preferred, has refused to admit evidence which ought to have been admitted, or
(b) the party seeking to adduce additional evidence satisfies the appellate Court that such evidence notwithstanding the exercise of due diligence, was not within his knowledge or could not he produced by him at or before the time when the decree under appeal was passed, or
(c) the appellate Court requires any documents to be produced or any witness to be examined to enable it to pronounce judgment Or for any other substantial cause, the appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Where additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission.'
It may be seen from this that where the appellate Court decides to receive additional evidence, the appellate Court may either take such evidence itself, or direct the Court below or any Court subordinate to it to take such evidence and send it up to the appellate Court, so that the evidence So taken may he taken into consideration in the hearing and disposal of the appeal on its merits, In other words, when action is taken under Order 41, Rule 27, C. P. C., the appeal is and must be retained on the file of the appellate Court, and dispose of only on the receipt of the additional evidence recorded by the Court of first instance or the subordinate Court under the directions of the appellate Court, in accordance with Rules 28 to 30 of Order 41, C. P. C.. which are as follows:
'28. Wherever additional evidence is allowed to be produced, the appellate Court may either take such evidence, or direct the Court from whose deciee the appeal is preferred, or any other sub-ordinate Court, to take such evidence and to send it when taken to the appellate Court.
29. Where additional evidence is directed or allowed to be taken the appellate Court shall specify the points to which the evidence is to be confined, and record on its proceedings the points so specified.