JUDGMENT M.P. Mehrotra, J.
1. This first appeal from order is directed against the order of the lower appellate court allowing an appeal and remanding the suit to the trial court with certain directions.
2. The brief facts are these. The plaintiffs-respondents sued for possession of a piece of land and mesne profits.
They alleged that the land in suit formed part of plot No. 50-B. The boundaries of the disputed land were given in the plaint. The defendants Nos. 1 to 3 were alleged to have taken illegal possession of the land in dispute which formerly had certain structures standing thereon, but after the structures fell down, it was in the shape of a khandhar. The said defendants started raising new constructions and thus arose the necessity for filing the suit. The defendants contested the suit and they denied that the land in dispute formed part of plot No. 50-B. According to them, it formed part of plot No. 51. They attacked the boundaries given in the plaint as vague and incorrect and contended that the land in dispute was part of their house and had been in their possession since long. Certain other pleas were also raised. The trial court framed the necessary issues and tried the suit. It held that the land in dispute had not been specifically demarcated, hence no finding about the title could be given. Issues Nos. 2 and 6 were left undecided on the ground that it was not possible to decide the said issues without deciding the question of title to the disputed land. The suit was therefore, dismissed by the -trial court. The plaintiffs felt aggrieved and filed an appeal in the lower appellate court. The latter passed the order of remand with certain directions. The trial court's decree and judgment were set aside and the suit was remanded for being re-registered at its original number. The trial court was directed to issue a fresh survey commission to get the number of the disputed land fixed. Certain other connected directions were given. The defendants felt aggrieved and came in appeal to this Court and in support thereof I have heard Sri V.K.S. Chaudhary, the learned Counsel for the defendant-appellants and in opposition, Sri N.P. Singh, the learned counsel for the plaintiff-respondents, has been heard.
3. Sri Chaudhary's main contentions are these. There was no justification for remanding the suit under Order 41, Rule 23, Civil Procedure Code. He further submitted that the plaintiffs were given repeated opportunities to get a local inspection made by a commissioner to be appointed by the Court, but they failed to avail of the said opportunity and, therefore, the lower appellate court was not justified in allowing such an opportunity to be given to them. In this connection, the learned Counsel took me through the order sheet of the trial court. I do not propose to discuss the order sheet of various dates. It is sufficient to say that there was some laxity on the part of the plaintiffs in the matter of getting a local inspection made by the Commissioner appointed by the Court. However, the order sheet also discloses that the attitude of the defendants-appellants on occasions was not very co-operative and the writ of commission could not be executed on account of such non-cooperation from their side on the said occasions. Sri Chaudhary also submitted that the remand order should be set aside and the lower appellate court should be directed to decide the appeal itself on merits. He suggested that in case the plaintiffs wanted to bring on record additional evidence in the shape of a fresh commission to be taken out for the survey of the plot, then recourse was bound to be taken to the provisions of Order 41, Rule 27, Civil Procedure Code and he suggested that the matter should be left to the discretion of the lower appellate court to decide whether to entertain such additional evidence in case the same was sought to be brought on record by the plaintiff-respondents. He placed reliance on Prayag Ice and Oil Mills, Aligarh v. State of U. P., 1971 All LJ 244 The learned Counsel for the plaintiff-respondents contested the submissions made by Shri Chaudhary.
4. Having considered the matter I feel that Sri Chaudhary is right in his contention that there was no occasion for a remand of the suit under Order 41. Rule 23, Civil Procedure Code. It is well known that a remand of the entire suit under the said provision should be an exception and should be taken recourse to only as a last resort. In the normal course the court should decide the case on the basis of the record in existence. However, the Appellate Courts have been given power to entertain additional evidence, if necessary, or to remit an issue for enquiry and report to the trial court under Order 41, Rule 25, Civil Procedure Code. There is a long catena of case law which has laid down that the provision of remand is not to enable the parties to have a second innings with a view to fill UD the lacuna in the pleadings or evidence. I do not propose to refer to these cases as the law is well understood in this respect. The lower appellate court in the instant case felt that without a clear demarcation of the land in dispute, it was not possible to give any finding on the question of title or ownership of the disputed land and, therefore, the suit was remanded to the trial court with a direction that the trial court should issue a fresh survey commission for the demarcation of the disputed land and for ascertaining the number of the plot in which ,it fell. In my view, for that limited purpose, it was not necessary to remand the entire suit under Order 41, Rule 23, Civil Procedure Code. The said purpose could be well achieved by the issuance of such a commission by the lower appellate court itself. I do not agree with Sri Chaudhary that the issuance of such a commission can only be done by way of the reception of additional evidence under Order 41, Rule 27, Civil Procedure Code. In my view that provision will not be applicable to a case where the Court itself desires a local inspection of the spot to be made and in such a situation the court can act under Order 26, Rule 9, Civil Procedure Code. It cannot be denied that an appellate Court has the power to issue a commission for local inspection in the same manner in which a trial court can act under Order 26, Rule 9, Civil Procedure Code. This follows from Section 107, Civil Procedure Code and if any authority be needed, then a reference can be made to Ram Dihal Lal v. Lakhpal Lal, (AIR 1932 All 270). In my view 1971 All LJ 244 (supra) does not support the contention raised by Sri Chaudhary. It was observed there as under:--
"Issue of a commission is something which is quite different from production of a document or examination of a witness. Provisions regarding issue of a commission are to be found in Order 26 of the Code. Rule 9 of Order 26 provides that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court."
5. In my view, therefore, the issuance of a commission for local investigation by the lower appellate Court will not necessitate a recourse to the provisions of Order 41. Rule 27, Civil Procedure Code. I agree with the lower appellate court that in the facts and circumstances of the case, it was desirable in the interest of justice that there should be a local investigation of the land in dispute with a view to ascertain its exact location and then to decide the controversy between the parties.
6. I, therefore, allow this appeal, set aside the order of the lower appellate court and direct that the said Court shall itself decide the appeal after issuing a commission for local inspection of the land in dispute with a view to ascertain its exact location and number and other necessary details. The Commissioner must be directed to prepare a correct map of the spot and to submit the same along with his report. After such report along with the map is obtained and after considering the objections of the parties to the same, if any, the lower appellate court will decide the appeal on the basis of the entire record including the report of the Commissioner. The parties shall bear their own costs.