P. Venugopal, J.
1. The defendants are the appellants before this Court. The first plaintiff is the widow of Kuppuswamy Chettiar and the plaintiffs 2 and 3 are the daughter and son. The plaintiffs filed a suit for declaration of title to the suit properties and for recovery of possession of the same from the defendants contending that the defendants were in permissive occupation of the suit properties during the lifetime of the first plaintiff's husband and after his death they have fraudulently asserted title to the suit properties and they should be evicted and possession given to the plaintiffs. The defendants filed written statements contending that they are not in permissive occupation of the suit properties and they are in possession in their own right. The trial Court held that the plaintiffs have not proved their title to the suit properties and dismissed the suit. On appeal, it was held that it is necessary to ascertain whether the properties in possession of the defendants and the property claimed by the plaintiffs are one and the same and an opportunity should be given to the plaintiffs and the defendants to localise the suit property by proper measurements and for this purpose remanded the suit. Aggrieved against the order of remand, the defendants have filed this appeal before this Court.
2. The learned Counsel for the appellants contended that the first Appellate Court exercised the power of remand without recording a clear finding that the judgment and decree of the trial Court is erroneous and is liable to be reversed or set aside and so long as that finding has not been arrived at by the Appellate Court, there is no scope for remanding the suit to the trial Court for a fresh disposal. It is further contended that inasmuch as the plaintiffs having come forward with a specific case that the suit properties are comprised in Cadastre No. 928 and having failed to prove the same, the Appellate Court by this order of remand cannot give an opportunity to the plaintiffs to fill up the gaps in evidence and remove the lacuna in the plaintiffs' case and the order of remand thus works out to great prejudice to the defendants and has to be set aside. In support of this contention learned Counsel for the appellant relied on four decisions of this Court reported in Ramakrishna v. Rangayya : AIR1954Mad783 , Balasubramania Ayyar v. Subbiah Thevar and Anr. I.L.R. (1964) Mad. 586 : 78 L.W. 105 : A.I.R. 1965 Wad. 417; Subramaniam and Anr. v. Kaliammal and Ors. : (1968)2MLJ548 and Sowdammal (alias) Sundarammal v. Veerammal and Ors. : (1970)1MLJ205 .
3. The learned Counsel for the respondents contended that Order 41, Rule 23-A, Civil Procedure Code, introduced under Act CIV of 1976, came into force with effect from 9th September, 1976 to widen the powers of the Appellate Court to remand the case for retrial and even the words 'in the interests of justice' occurring in Order 41, Rule 23 have been omitted under this rule and such being the wide powers conferred on the Appellate Court under this newly introduced rule the order of remand passed by the Appellate Court is valid and should be upheld.
4. The power of remand under Order 41, Rules 23 and 23-A can be exercised by the Appellate Court if it comes to the conclusion that the judgment and decree of the trial Court are erroneous on facts or on law and are therefore, liable to be reversed or set aside. After coming to such a conclusion, if the Appellate Court is of opinion that the interests of justice require that there should be a fresh trial, it can remand the suit for fresh disposal. The discretion of the Appellate Court to order re-trial is unfettered. But this discretion is not to be exercised in arbitrary manner; but it should be exercised on sound judicial principles. A remand cannot be ordered to enable a party to fill up the lacuna in the case. But where the party was denied an opportunity of producing all the evidence they desired to produce before the trial Court, then the Appellate Court, in exercise of the discretionary powers to further the ends of justice may order remand or re-trial of the case. Order 41, Rule 23-A was introduced in the Code by Amendment Act CIV of 1976. Prior to the enactment of the above amending Act, Courts have held that under Order 41, Rule 23, an order of remand can be passed only on the reversal of the decree disposing of a suit on a preliminary point and in other cases where the judgment of the trial Court is reversed on merits and the case is remanded for re-trial to the trial Court, it can be done by the Appellate Court only in exercise of its inherent powers under Section 151, Civil Procedure Code. Now under Order 41, Rule 23-A the whole case can be remitted to the trial Court where the judgment reversed is not on a preliminary point but one on merits. Thus Order 41, Rule 23-A has widened the power of the Appellate Court to remit the case to the trial Court for re-trial. But even the power under Order 41, Rule 23-A can be exercised by the Appellate Court only after recording a finding that the judgment and decree of the trial Court are erroneous and are liable to be reversed or set aside.
5. In the instant case the suit properties are two vacant sites, the first item measuring 42 feet East to West and 48 feet North to South and the second item measuring 90 feet East to West and 48 feet North to South. The boundary descriptions of both these items are given in the plaint. The plaintiffs filed the suit on the basis that the two vacant sites are comprised in Cadastre No. 928. The plea of the plaintiffs is that their paternal grand-father acquired these properties under Exhibit A-1. Exhibit A-1, however, does not give the Cadastre number or paimash number of these items of properties. It merely states that the paimash numbers are standing in the names of Muthurisammal and Ponnammal. The defendants in their written statement merely pleaded that they are in possession of the suit properties in their own right. It is nowhere stated in the written statements of the defendants that the suit properties are not comprised in Cadastre No 928. At the time of trial Exhibit B-7 was produced to show that the properties comprised in Cadastre No. 928 belongs to the Municipality. Thereupon the plaintiffs filed an application for appointment of a Commissioner to measure and locate the suit properties. The application was dismissed by the trial Court. The first plaintiff was recalled and examined in the Appellate Court and she deposed that she has not given the Cadastre number of the suit items as 928 and the correct number is 925 as seen from the boundary descriptions given in the plaint schedule. After taking into account the application filed by the plaintiffs for appointment of a Commissioner before the trial Court and also the evidence of the first plaintiff before the Appellate Court, the Appellate Court recorded a finding that the real dispute in the suit is whether the properties in possession of the defendants and the properties claimed by the plaintiffs are one and the same and the parties should be given an opportunity to localise the suit properties by proper measurement, and the trial Court without a proper understanding of the disputes between the parties, dismissed the suit on the short ground that the plaintiffs have not proved their title to the suit properties. It is not as if the appellate Court simply and mechanically remanded the suit to the trial Court without applying its mind as to the correctness of the finding recorded by the trial Court. The Appellate Court has come to the conclusion that the plaintiffs were not given an opportunity of proving their case with reference to the boundary descriptions by appointment of a Commissioner for localising the suit property and in view of this denial of opportunity and in the interests of justice, the Appellate Court has directed the trial Court to dispose of the suit afresh. In paragraph 14 of its judgment the Appellate Court has clearly stated that the judgment of the trial Court is set aside and the suit is remanded to the lower Court for disposal according, to law. Paragraph 13 of the Appellate Court judgment clearly states that no proper findings can be given without the parties being given an opportunity to localise the suit properties by proper measurement of the properties in the occupation of the defendants and plaintiffs. The tenor of the order of the Appellate Court clearly suggests that on the evidence before it, the trial Court cannot give a proper finding regarding the disputes involved, and for a proper and fair adjudication of the disputes involved, opportunity should be given to the parties to localise the suit properties after measuring the lands in the possession of the plaintiffs and defendants. It is not a case where the order of remand is resorted to by the Appellate Court to enable the plaintiffs to fill the omissions or for patching up the weak parts of their case. The inherent lacuna and defect in the identification and location of the suit properties became apparent after the first plaintiff was recalled and examined by the Appellate Court. That gave a legitimate occasion for the Appellate Court to exercise the power of remand and order re-trial in exercise of its power under Order 41, Rule 23-A, Civil Procedure Code. The order of remand passed by the Appellate Court, in the circumstances, is fully justified and is accordingly upheld. In the result, the appeal fails and stands dismissed. No costs.