K. Kalyanasundaram, J. - (1.)THIS appeal is filed against the order of remand made in A.S. No. 9 of 2012 dated 11.09.2012 on the file of the Sub Court, Virudhunagar.
For the sake of convenience, the parties are referred as per their litigative status in the suit.

Brief facts of the case are that the petitioners are plaintiffs in O.S. No. 209 of 2009, which was filed for permanent injunction restraining the respondents herein from interfering with their peaceful possession and enjoyment of the property. The plaintiffs examined two witnesses and marked Exs. A1 to A6. On the side of the defendants, no witness was examined and no document was filed. The trial court after considering the oral and documentary evidence, decreed the suit. Aggrieved by the judgment and decree, the defendants filed an appeal in A.S. No. 9 of 2012 before the Sub Court, VirdhunagaR.In the appeal, the defendants filed an application in I.A. No. 43 of 2012 to receive additional evidence. The learned appellate judge allowed the interim application and remanded the case to the trial court holding that the defendants were not given sufficient opportunity to defend the case. Challenging the order of remand, the present appeal is filed.

(2.)HEARD MR.Subbiah learned counsel for the appellants and MR.C. Jeganathan for MR.Veerakathiravan, learned counsel for the respondents.
Learned counsel for the appellants submitted that the defendants were given sufficient opportunity by the trial court, but they did not choose to appear before the trial court to defend their case. In the grounds of first appeal also, the defendants did not raise any grounds of non providing of sufficient opportunity by the trial court. The learned counsel further submitted that the defendants filed an application before the appellate court for receipt of additional evidence and in the affidavit also, the defendants did not give any reason for receiving additional evidence at the appellate stage. It is further submitted by the learned counsel that the documents sought to be marked by the defendants at the appellate stage are of the documents prior to the suit and the documents were in possession and knowledge of the defendants. In the above facts, the defendants are not entitled to mark documents in the appeal as per Order 41 Rule 27 CPC.

(3.)LEARNED counsel further submitted that the application filed for receipt of additional documents has to be taken up along with the appeal and if the appellate court after considering the evidence available on record comes to the conclusion that for pronouncing the proper judgment, additional documents are necessary, the appellate court itself can record additional evidence as provided under Order 41 Rule 28 or remand the case to the trial court for recording the evidence and for submitting a report. Learned counsel further submitted that the appellate court ought to have considered the documents produced by the defendants and if it comes to the conclusion that those documents are relevant, then only, the documents can be allowed to be marked in the appeal. Learned counsel submitted that the appellate court in this case did not give any reason for allowing additional evidence and without any valid reason remanded the entire case, which is not sustainable in law. In support of his contention, learned counsel has relied upon the judgments reported in M. Mani vs. Cuddalore Municipality,, 2011(1) CTC 239, Arulmighu Kallalagar Thirukoil, Alagar Koil etc. vs. The Government of Tamil Nadu, etc and others, : 2004(1) L.W. 647, P.V. Chinnaraj vs. V. Nagaraj, : 2013(1) L.W. 353 and Malayalam Plantations Ltd., vs. State of Kerala, : 2011(1) CTC 122.