THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No. 51 of 2007 JUDGMENT: 1. This appeal, under Order 43, Rule 1(u) read with Section 151 of the Code of Civil Procedure, 1908 (for short “C.P.C ”) is directed against the Judgment and decree, dated 23.10.2006 in A.S.No.76 of 2002 on the file of II Additional District Judge, Kadapa at Proddatur, whereunder and whereby, the Judgment and decree of the trial court dated 19.09.2000 in O.S.No.75 of 1998 were set aside and the matter was remanded to the trial court with a direction to re-admit the suit in the original number and to allow further evidence with regard to the existence of field channel and also to examine the advocate commissioner in O.S.No.345 of 1995 to prove the report. 2. For better appreciation of facts, parties are hereinafter referred to as arrayed before the trial court. 3. The brief facts that are necessary for disposal of the present appeal may be stated as follows: The plaintiff filed O.S.No.74 of 1998 on the file of Principal Junior Civil Judge, Proddatur, against the defendants for declaration of his right to take irrigation water through the plaint plan marked XXX field channel running through the suit land bearing survey No.41 to the plaintiff land in survey Nos.42/1 and 43/1 and 2, which is an extent of Ac.4.28 cents, for permanent injunction to restrain the first defendant and his people from in any way interfering with his right of taking irrigation water through the said channel for the mandatory injunction directing the first defendant to remove the mud etc place by him in XXX field channel and if he fails to do so, got it done through the process of the Court for costs. 4. The first defendant filed written statement contending that he has been in enjoyment of the plaint schedule property of Ac.1-01 cents in survey No.41 from the time of his grand-father and even though the Government granted Eksal patta in favour of one Badripalli Thataiah, that assignment was not acted upon and became a stale one. It is further stated that plaint schedule property was purchased by the first defendant’s grand father Kandula Rangaiah from Seemannarasaiah under an agreement of sale dated 27.12.1944. Ever since he has been in possession and enjoyment of the same and paying land revenue to the Government. After the death of Rangaiah and father of the first defendant and after the father of the first defendant’s father, the first respondent has been in possession and enjoyment of the suit land and paying land revenue to the Government. It is further stated that in view of the disputes in between the first defendant and the V.A.O. Somapuram, the said V.A.O., and the plaintiff got initiated a false action by the Mandal Revenue Officer, Chapadu Mandal in the year 1995 and they got issued notice to the first defendant alleging that he has encroached the plaint schedule property. Later the first defendant got issued reply. As there being no action against the plaintiff and V.A.O by the Mandal Revenue Officer, the first defendant filed suit O.S.No.345 of 1995, on the file of Principal Junior Civil Judge, Proddatur. In that suit, the Mandal Revenue Officer, filed written statement with false allegations. In that suit the plaintiff himself impleaded as a party and he filed I.A.No.631 of 1996 against the first defendant for grant of temporary injunction in his favour and the said petition was dismissed by this Court. Again the plaintiff filed I.A.No.682 of 1996, for counter claim, the same was allowed. Against the said order the first defendant preferred revision before this Court in C.R.P.No.4711 of 1996 wherein the said order was set aside. Therefore he prays to dismiss the suit and exemplary costs of Rs.5000/- under Section 35-A C.P.C. 5. The second defendant filed written statement which was adopted by the third defendant supporting the case of the plaintiff. Hence, they pray to dismiss the suit O.S.No.345 of 1995 filed by the first defendant against the plaintiff and defendant Nos. 2 and 3, as there is no cause of action and as they are unnecessary parties to the suit. 6. Basing on the above pleadings the following issues have been framed by the Trial Court: 1) whether the plaintiff is entitled for declaration as prayed for? 2) Whether the plaintiff is entitled to permanent injunction as prayed for? 3) Whether the plaintiff is entitled to mandatory injunction as prayed for? 4) Whether the defendant No.1 is entitled to exemplary costs of Rs.5000/- as prayed for? 5) To what relief? 7. On behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A-1 to A-13 were marked. On behalf of defendants, DWs-1 to 3 were examined and Exs.B-1 to B-27 were got marked. 8. The trial court after consideration of evidence available on record came to the conclusion that the plaintiff could not establish about the existence of XXX channel in the suit land and its closure by the first defendant in the year 1995, and therefore dismissed the suit. On appeal, the matter was remanded to the trial court. Challenging the same, the present appeal is filed. 9. Now the point for consideration is whether the order of the appellate court remanding the matter, is legal, proper and correct? 10. Learned counsel appearing for the appellant contended that to fill up the lacunae of the case, the order of the remand cannot be made; that voluminous evidence has been let in by both the parties and that in spite of appreciating the evidence, the appellate Court simply remanded the matter without assigning any reasons and hence, it is not a case falling under Order XLI Rule 23 C.P.C., and therefore, he prays to set aside the impugned decree and judgment. 11. In spite of service of notice, none appears for the respondents. 12. The power of remand by appellate court is governed by the provision under Order XLI Rule 23 C.PC., which reads as follows: “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, the Appellate Court may, if it thinks fit, 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 the appeal is preferred, which 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 trial shall, subject all just exceptions, be evidence during the trial after remand”. A perusal of the above provision makes it clear that the appellate Court has a power to remand the matter, if it thinks fit. But when the evidence on record is sufficient, to pronounce the Judgment, the appellate Court shall pronounce the judgment instead of remanding the matter. 13. It is not the case of the plaintiff that further evidence is necessary for the purpose of deciding the issues framed. Without there being a prayer for remand for adducing further evidence, it may not be proper on the appellate court to remand the matter especially, when there is a voluminous of evidence available on record to pronounce the Judgment. The existence of the irrigation channel or its closure can as well be decided basing on the evidence adduced by the parties. That aspect of the case has not been taken into consideration by the appellate Court. Therefore, the appellate Court was not right in remanding the matter without considering the existing evidence available on record. Therefore, it is not a fit case to remand the matter, because the entire evidence was available on record. Hence, the order of remand is set aside and the appellate Court is directed to dispose of the appeal in accordance with law, after giving notice to both the parties. 14. Accordingly, the Civil Miscellaneous Appeal is allowed. There shall be no order as to costs. _______________ K.C. BHANU, J JUNE 09, 2010 YVL IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE NINETH DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 51 of 2007 Between : Kandula Dasthagiraiah …APPELLANT A N D Nandyala Varada Reddy and others. …RESPONDENTS