1. This is an appeal against the judgment and decree of the Subordinate Judge of Masulipatam in A. S. No. 150 of 1949 reversing the judgment and decree of the learned District Munsif of Gudivada in O. S. No. 272 of 1946 and remanding the suit for fresh disposal.
2. The learned Subordinate Judge has remanded the suit on the foot of the following observations :
'The learned District Munsif has not discussed in detail the question of the alienations and the immunities of the alienees under Section 41, Transfer of Property Act. The primary question for decision is whether the alienees are transferees for consideration and whether they took reasonable care to ascertain whether the transferor had the power to transfer and acted in good faith. Seventh defendant gave no evidence personally. His agent has come into the box to speak on behalf of his principal. In making the purchase, the alienees presumably relied on the sale deed, Ex. B. 1 and the two khats Exs. B. 3 and B. 4, standing solely in the name of Sowbhagyarayudu but there is the circumstance that revenue registry and the patta are in the joint names of Sowbhagyarayudu and plaintiff.
The question has to be considered whether the main alienees' failure to pursue that avenue of investigation amounts to a lack of reasonable care in ascertaining the title of the transferor. If an extract from the settlement register of a patta is tendered in evidence that may be received by the trial court, an opportunity may be given to both sides to adduce further oral and documentary evidence touching all questions under Section 41 of the Transfer of Property Act. The case is remanded therefore to the trial court for a disposal according to law in the light of the observations in the judgment and the findings given above. The costs of appeal will abide and follow the result of the fresh trial. Court fee paid on the appeal memorandum will be refunded to the appellants.'
3. These high-sounding phrases in the ultimate analysis resolve themselves only into two things, namely, that undoubtedly there was evidence for the learned District Munsif to decide, but that it would be better to have more and satisfactory evidence before arriving at a conclusion, and that therefore both parties should be directed to look for such evidence and adduce it, if possible. There is no question of the learned District Munsif having shut out any evidence or not giving any opportunity to the parties to adduce such evidence.
4. This is not within the scope of remand under Order 41, Rule 23. It is quite true that under the Madras Amendment of Order 41, Rule 23 the discretion of the court is unfettered; but that discretion of the court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a Court of Appeal. The appellate Court should not however rashly and without sufficient cause, order retrial in any case in which this can possibly be avoided; a remand order should not thus be made under this rule in a case which could efficiently be dealt with under Rule 25; nor can a remand be ordered so as to enable a party to fill up the lacuna in his case. It has been repeatedly held by this court that a remand should not, generally speaking, be ordered when the defect in the proceeding has been made due to the negligence or default of the party who will benefit by the remand. It has been further held that the mere fact that the evidence on record is not sufficient to enable a court to come to a definite finding on the point in issue, is not sufficient to enable the court to remand the case, when there is no reason to think that the parties did not have an opportunity of producing all the evidence that they desired to produce before the trial court. There is a clear danger that in such cases a remand order may in effect be an invitation to perjury.
5. These principles are deducible from - 'Mallappa Chettiar v. Alagiri Naicker', AIR 1931 Mad 791 (A); - 'Kunha Mina Umma v. Kunhi-purthunma' : AIR1935Mad715 , 'Bhagavat SasLrulu v. Lakshmikantam1, AIR 1940 Mad 511 (C); - 'Mannarayana Charyulu v. Bhavanachar-yulu', AIR 1948 Mad 348 (D); - 'Chithiah Muda-liar v. Govinda Pandithan', AIR 1949 Mad 394 (E). The provisions of Order 41, rule 23 are not intend-ed, as pointed out by Mack J. in - 'Puchamma v. Bamasitamma' : AIR1954Mad191 , to circumvent the provisions of Order 41, rule 27, C. P. C. nor by merely using the formula 'in the interests of justice' can an otherwise unjustifiable remand be clothed with an air of legality, because the judg-ment must show that the conditions of the rule have been fulfilled before the extraordinary powers conferred on the appellate court are used, as points ed by Rajamannar J. (as he then was) in - 'Koya-kutti v. Kunhali', AIR 1946 Mad 203 (G). In other words, the order of remand made without coming to a conclusion that the decision of the trial court is wrong and that it is necessary to reverse or set aside the decree is illegal, as has been pointed out by Horwill J. in - 'Veeramma v. Lakshmayya', AIR 1948 Mad 488 (H); in - 'AIR 1949 Mad 394 (E)' and in - 'Ariangavu Pillai v. Nallamangal Ammal' : (1950)2MLJ370 and cited with approval and followed by Chandra Reddy J. in - 'Thiru-malaiswamy Mudali v. Periasami Mudali' : AIR1952Mad66 .
6. The order of remand by the lower court cannot be supported, and it is hereby set aside, and the present learned subordinate Judge is directed to re-admit this appeal on his file in its original number and dispose of it according to law. The costs of this appeal will abide and follow the result.