P. SATHASIVAM, J.
( 1 ) AGGRIEVED by the order of remand made by the lower appellate court in a. S. No-316of 1987, the plaintiff has filed the above Civil Miscellaneous Appeal before this Court. The appellant/plaintiff has filed in O. S. No. 6993 of 1983 before the XIth Assistant Judge, City Civil Court, madras praying for a decree for mandatory injunction directing the defendant. Punjab National Bank to give credit of a sum of Rs. 20,000/- deposited on 25. 4. 83 in his current account maintained by the Bank and direct the defendant to pay the plaintiff the sum of Rs, 20,000/-with interest thereon at the rate of 12 per cent per annum from the date of decree in the suit until realisation. By judgment and decree dated 8. 4. 85, the learned trial Judge decreed the suit as prayed for with costs. The defendant-Bank filed an appeal in A. S. No. 316 of 1987 before the principal City Civil Judge, Madras. While the appeal of the defendant is pending before the lower appellate Court, the plaintiff has filed C. M. P. No. 6 of 1988 under Order rule 17 read with Section 40 (2) of Specific relief Act for amendment of his plaint in O. S. No. 6993 of 1983. Even though the appellant/plaintiff has prayed for decree for mandatory injunction and having obtained decree as prayed for in order to avoid technical objection, the plaintiff has filed the said application for amendment of the plaint and prayed for a money decree in respect of Rs. 20,000/- paid by him. After holding that by virtue of the present claim for amendment, the plaintiff is not introducing any fresh cause of action and it will not affect the defence of the defendant in the interest of justice, allowed the said amendment. Inasmuch as the plaintiff has filed the said application only at the appellate stage when the appeal was pending before the lower appellate court, the Court below has directed the plaintiff to pay a sum of Rs. 250a towards costs to the other side. After allowing the said application for amendment and in order to give an opportunity to both parties, remanded the case to the trial Court. The learned Judge has also permitted the defendant to file additional written statement, if necessary and also permitted both parties to lead fresh evidence.
( 2 ) MR. K. Kesavanath Davey, learned counsel for the appellant, by pointing out the relevant provision, namely, Order 41, Rule 23 of the Code of Civil Procedure, contended that in the absence of setting aside the judgment and decree pf the trial Court, the remand made by the lower appellate Court cannot be sustained. The circumstances in which the appellate Court can remand the matter to the trial court has been explained in Order 41, Rules 23 to 29, C. P. C. In our case, the lower appellate Court after allowing the amendment petition of the plaintiff, which according to the plaintiff, is only a formal and it requires no further evidence or adjudication, without assigning any reason or reasons for setting aside the judgment and decree of the trial Court, merely remanded the case to the trial Court with a liberty to both parties to lead fresh evidence. I have already stated that elaborate procedure and. the circumstances in which the matter has to be remanded to the trial Court have been enumerated in Order 41, Rules, 23 to 29, C. P. C. A perusal of the said clauses shows that irrespective of allowing the amendment petition, the appellate Court itself can deal with the matter and dispose of the same one way or other. However, without setting aside the judgment and decree of the trial court, it would not be possible for the appellate Court to remit the case to the trial Court in order to give an opportunity to the parties. Such remand without following the procedure enumerated in Order 41, Rules 23 to 29 has been depricated in so many decisions of this court. In this regard, the learned Counsel for the appellant has very much relied on a judgment of Venkataraman, J. , reported in achammal v. Kistama Naidu. After considering the provisions contained in Order 41, rule 23, the learned Judge has held as follows :". . IT is settled law, at any rate, so far as the Court is concerned, under Order 41, rule 23, that before the suit could be remanded to the trial Court, it is necessary for the appellate Court to find that the decree of the trial Court should be set aside,. . . . . "
( 3 ) IN the case of Balasubramamia v. Subbiah, Ramamurti, J. , has held as follows-"9. The powers of an appellate Court to pass an order of remand and to send the case back for trial is well settled. Under Order 41, Rule 23, C. P. C. the appellate Court has got power to remand a suit for fresh disposal- (a) if the suit has been disposed of on a preliminary point, or (b) if the appellate Court considers that it is necessary in the interests of justice that the matter should be disposed of afresh by the trial Court. It has been repeatedly pointed out by this Court that this power of remand ought not to be lightly exercised by the appellate Court, where it has failed to discharge its own duty of disposing of the appeal on merits. Frequent instances are coming to the notice of this Court in which orders of remand are passed under Order 41, Rule 23, C. P. C. indiscriminately even though the requirements of law were not satisfied at ali. If the trial Court has not disposed of the suit on a preliminary point but has delivered judgment on merits it is the duty of the appellate Court to deal with the appeal on its merits. It is only in exceptional cases where the judgment of the trial Court is wholly unintelligible or incomprehensible that the appellate Court can remand the suit for a fresh trial. The fact that there are some defeats and infirmities in the reasoning of the trial court is surely not a ground for the appellate Court not to do its duty of disposing of the appeal on merits. The appellate Court will be acting clearly without jurisdiction if it simply and mechanically remands a suit to the trial court without applying its mind as to whether the judgment and the findings of the trial Court are correct and if not whether it should be reversed or set aside. In other words, the appellate court should come to the clear conclusion that the findings of the trial Court cannot be supported and must be set aside. Ends of justice require that a party litigant who had incurred expenses and undergone all the ordeal and trouble of a protracted trial in the trial Court should not be deprived of the benefit of the adjudication and be obliged to fight the case, over again for some defect or mistake in the form of expenses of the trial court. The tendency on the part of the appellate Court to remand a suit on sieneer grounds cannot but be strongly deprecated. "
( 4 ) IT is clear from the above decisions as well as the provisions contained in Order 41, rules 23 to 29, C. P. C. . that duty is cast on the appellate Court to find that the decree of the trial Court should be set aside. Even the fact that there are some defects or infirmities in the reasoning of the trial Court is not a ground for the appellate Court to remand the same to the trial Court. The appellate Court should come to the clear conclusion that the findings of the trial Court cannot be supported and must be set aside. Only in exceptional cases where the judgment of the trial Court is wholly unintelligible or incomprehensible that the appellate court can remand the suit for fresh trial. A reading of the judgment of the appellate court would show that it has not at all considered the judgment of the trial Court nor pointed out any infirmity or defect in the conclusion. Further, the learned appellate Judge has not born in mind any of the principles mentioned above. A careful scrutiny of the judgment also shows that he never felt that the judgment of the trial Court must be set aside or reversed. After allowing the amendment petition, the appellate Court has simply directed the trial court to try the matter once again, after affording further opportunity to the parties, the directions contained in the order of remand are vague and too general in character. The fact that the lower appellate Court has not considered the reasoning or merits of the decree of the trial Court has not been disputed by the learned Counsel for the responde
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nt-bank. ( 5 ) UNDER these circumstances. I have, therefore no hesitation in setting aside the order of remand passed by the learned appellate Judge and direct him to restore A. S. No. 316 of 1987 on his file and dispose it of according to law. 1 do not wish to say anything further about the merits of the case or about the implementation of the amendment ordered by the lower appellate Court. The lower appellate Judge can dispose of the appeal on the materials available or if he thinks it necessary, he can take additional evidence under Order 41, Rules 27 and 28, C. P. C. after giving sufficient opportunities to the parties to adduce further evidence, civil miscellaneous appeal is allowed. No costs, inasmuch as the appeal is of the year 1987, the lower appellate Court is directed to dispose of the appeal within a period of three months from the date of receipt of a copy of this Order. Appeal allowed.