P. Natarajan Chettiar vs P. Balachandran

Srinivasan, J.—There is no merit in this appeal. The appellate court had admitted the survey plan as additional evidence and marked it as

Ex.A16. No ground has been raised in the memorandum of appeal challenging the order admitting additional evidence. On the basis of the

additional evidence and on the basis of certain other factors which are referred by the appellate court in its judgment, it finds that the trial court has

not taken into account several relevant matters and the trial court had to reconsider the matter. The appellate court also found that the

Commissioner''s report and the plan have not been considered properly by the trial court. Learned counsel contends that it is the duty of the

appellate Court to consider the evidence by itself and decide the case on merits. No doubt, it is so. When the appellate court has held that on the

basis of additional evidence admitted, the matter should be reconsidered and certain facts should be ascertained by taking the measurements of the

properties, a remand is justified. Learned counsel for the appellant places reliance on the judgment of K.M. Natarajan, J. in Kannu Naicker and

others v. Kalaimani and others 100 L.W. 922 . The learned judge his only set out the well settled principles for remand and also the provisions of

O.41, R. 23, C.P.C. In the present case, the order admitting additional evidence in the appeal has not been challenged. That means, the provisions

of O.41, R.23 of the C.P.C. have been satisfied in this case and on the basis of the additional evidence admitted, the remand is necessitated.

I do not find any justification for interfering with the order of the appellate court and the appeal is dismissed.