Judgment Subrata Talukdar, J. In this appeal, FA 46 of 2009, the Appellant has impugned the judgment and order dated 7th July, 2007 passed by the Learned Second Civil Court (Senior Division) at Barasat in Money Suit No.5 of 1998. By the impugned judgment the Learned Trial Court was pleased to dismiss Money Suit no.5 of 1998 ex parte without costs. The appellant is the plaintiff in the Court below. The defendant nos. 1 to 4 are the West Bengal Film Development Corporation Limited (for short Corporation) and its officers. In the course of hearing Vijaya Bank and Khanna Cinema have been allowed to be impleaded as proforma defendants. The suit is for recovery of money by way of damages valued at Rs. 51,46,869/- along with interest. The case of the appellant, as plaintiff before the Learned Trial Court is as follows:- That the appellant is the sole proprietor of M/s. Ranjeeta Enterprises having its office at 312 Gopal Lal Tagore Road, P.S. - Baranagar, Kol-700036. The appellant has produced a Bengali feature film by the name of ‘Prem Sangee’ in colour. The said feature film was produced at considerable costs to the appellant and involved noted actors and musicians. The total cost of production was estimated at Rs. 28,02,545/-. The work of developing the first positive print for release of the said feature film was entrusted by the appellant to the defendant nos.1 to 4 who claimed to have the expertise for developing the prints prior to the release for exhibition at various cinema halls. The appellant contends that the defendant nos.1 to 4, commonly known as Rupayan Laboratories were entrusted with the further task of developing an additional 4 nos. of positive prints of the said feature film for release in Kolkata and districts of West Bengal. Towards developing the said positive prints the appellant made arrangement for supply of raw stock of Kodak 35 MM films directly to the laboratory of the defendants nos. 1 to 4. The plaintiff alleges that on 12/12/1997 when he was at the office of his booking agent it was brought to his notice that the cinema halls in which the said feature film was being exhibited were reporting poor and defective quality of the print nos.2, 3, 4 & 5. 1 to 4. The plaintiff alleges that on 12/12/1997 when he was at the office of his booking agent it was brought to his notice that the cinema halls in which the said feature film was being exhibited were reporting poor and defective quality of the print nos.2, 3, 4 & 5. On receiving such complaint of the foggy, hazy nature of the prints as well as insufficient lighting display, the appellant wrote to the defendant nos. 1 & 4 on 12/12/1997 itself. The appellant caused to be served upon the defendant nos.1 to 4 notice dated 12/12/1997 complaining of the defective and/or damaged prints. He drew the attention of the defendant nos. 1 to 4 that there were complaints from the cinema hall and the audiences of the defective quality of the prints and such complaints were even reported in contemporaneous newspapers. The appellant also pointed out that the print no.1, being free of defects, was exhibited successfully at Shyamsree Cinema in the then district of Midnapore. By further letter dated 15/12/1997 the appellant requested the defendant nos. 1 to 4 to take appropriate steps for removing the defects in print nos. 2, 3, 4 & 5. The reminder dated 15/12/1997 was followed by an Advocate’s notice dated 17/12/1998 in which the request to the defendant to immediately remove the defects and/or to replace the said defective prints by making fresh prints was reiterated. The appellant has alleged that due to the inaction of the defendants in taking timely and proper steps in the matter of removal of the defects in the print nos. 2, 3, 4 & 5 the plaintiff has suffered a total loss of Rs. 51, 46, 869 and accordingly prayed for recovery of such money by way of damages being the cost of production, cost of raw film, printing charges and publicity expenses incurred by him. The appellant has also prayed for interest till realization of the money. Upon service of summons the defendant nos. 1 to 4 appeared by filing vakalatnama. However no further steps were taken by the defendant nos. 1 to 4 to contest the suit and hence it was heard ex parte. Vijaya Bank and one of the cinema halls, Khanna Cinema were impleaded as proforma defendants in the suit. Upon service of summons the defendant nos. 1 to 4 appeared by filing vakalatnama. However no further steps were taken by the defendant nos. 1 to 4 to contest the suit and hence it was heard ex parte. Vijaya Bank and one of the cinema halls, Khanna Cinema were impleaded as proforma defendants in the suit. The Vijaya Bank filed its written statement putting on record the fact that the appellant was sanctioned a term loan of Rs.25 lacs for the production of a Bengali feature film and loan documents were executed in favour of the Bank by the appellant on 21/05/1997. The Bank has further alleged that as on 31/12/1998 an amount of Rs.19, 89,900 was due and outstanding with further interest calculated from 01/01/1999. The Bank reserved to itself the right to proceed against the appellant for recovery of such outstanding amount. The appellant adduced evidence-in-chief before the Learned Trial Court reiterating the contents of his complaint. The appellant also filed a petition under Order 11 Rule 12(2) of the Code of Civil Procedure for discovery of documents which, inter alia, covered all the relevant facts pertaining to the production and exhibition of the said feature film. The documents, inter alia, included copies of the transaction entered into between the appellant and the defendant nos.1 to 4 for developing the positive prints; the loan application for credit facilities issued by Vijaya Bank in favour of Ranjeeta Enterprises; audit account of Ranjeeta Enterprise for the year ended 31/03/1996; notices issued on behalf of the appellant to the defendants dated 12/12/1997, 15/12/1997 & 17/12/1997; reports from cinema halls on the condition of the film dated 11/12/1997 and 12/12/1997. In his application the appellant undertook to file all the original documents before the Learned Trial Court at the time of hearing or, as and when directed by the Learned Trial Court. To arrive at a conclusion on the point of the extent of defects and or damage to print nos. 2, 3, 4 & 5 the appellant filed an application under Order 26 Rule 10(i)(A) read with Section 151 of the Code of Civil Procedure praying for an enquiry by an expert on the quality of the said prints. The appellant specifically prayed that the positive prints may be sent to Prasad Laboratories, Bhubaneshwar or any other laboratory for scientific comparison, enquiry and report. The appellant specifically prayed that the positive prints may be sent to Prasad Laboratories, Bhubaneshwar or any other laboratory for scientific comparison, enquiry and report. The appellant also filed an application for temporary injunction restraining the defendants from spoiling the prints of the said feature film. However, the said injunction application was not pressed by the appellant. The Learned Trial Court by Order no. 2 dated 24/02/1998 allowed the application of the appellant under Order 6 Rule 17 read with section 151 of the Code of Civil Procedure adding Vijaya Bank and Khanna Cinema as proforma defendant nos. 5 & 6 to the suit. While allowing the amendment the Learned Trial Court held that such amendment should be allowed for the purpose of determining the recovery. By Order no.7 dated 07/09/1998 the Learned Trial Court adjudicated the appellants petition under Order 26 Rule 10(i)(A) read with Section 151 of the Code of Civil Procedure praying for scientific enquiry into the condition of the prints. By Order no.37 dated 16/10/2001 the Learned Trial Court allowed the application under Order 26 Rule 10(i)(A) read with Section 151 of the Code of Civil Procedure holding that for the purpose of proper adjudication the 5 positive prints should be sent to ADLAB, Bombay (now Mumbai) for scientific enquiry. The Learned Trial Court directed that ADLAB should be informed about the probable cost of the work as per the prayer of the appellant. A copy of the Order no.37 dated 16/10/2001 was directed to be sent to ADLAB, Bombay (now Mumbai). The Learned Court recorded that the Order no.37 has not yet been complied with and therefore ADLAB should be intimated without any further delay asking them the probable cost of scientific enquiry. Along with such intimation the Learned Court further directed that the copy of the Order no.37 dated 16/10/2001 along with a copy of the appellant-plaintiff’s petition under Order 26 Rule 10(i)(A) be sent to ADLAB for necessary action. It appears from the records that no further steps were taken by the Learned Court to ensure that its Orders dated 16/10/2001 and 07/03/2001 were complied with and reports of the scientific enquiry were produced for effective adjudication of the claim in the suit. The suit was finally decided by the judgment impugned dated 07/07/2007. It appears from the records that no further steps were taken by the Learned Court to ensure that its Orders dated 16/10/2001 and 07/03/2001 were complied with and reports of the scientific enquiry were produced for effective adjudication of the claim in the suit. The suit was finally decided by the judgment impugned dated 07/07/2007. The Learned Trial Court came to the finding that the appellant-plaintiff failed to produce any document as exhibited documents for establishing his case. The appellant-plaintiff therefore could not prove that he had incurred any loss and such loss was due to the laches of the defendant nos.1 to 4. The Learned Trial Court relied on some reviews published in a few daily newspapers to surmise that the said feature film was a “good picture”. Therefore, the Learned Trial Court concluded that in view of the newspaper reports indicating that the said film was a “good picture” the appellant-plaintiff has waived his allegations against the defendant nos. 1 to 4 that the quality of print nos.2, 3, 4 & 5 were defective. The Learned Court further held that the appellant-plaintiff did not exhibit any newspaper edition nor examined any expert etc. in respect of the quality of the prints. Furthermore the Learned Trial Court concluded that the appellant-plaintiff has supplied the defendant nos.1 to 4 the raw stock and there being no evidence to show that the raw stock was of good quality, it could not be said that due to the laches of the defendants the defective prints were delivered for exhibition. The Learned Trial Court accordingly dismissed Money Suit no.5 of 1998. Sri Ranjan Kali, Learned Counsel for the appellant has argued that the Learned Trial Court failed to finally adjudicate the suit in the light of the Orders passed by it from time to time. He drew our attention to the Orders of the Learned Trial Court directing scientific enquiry. He emphatically argued that when no response was received from ADLAB, Bombay (now Mumbai) in spite of specific directions from the Learned Trial Court, the Learned Trial Court ought to have called for scientific enquiry by any other laboratory as prayed for by the appellant-plaintiff to arrive at a just conclusion on the quality of the prints. He emphatically argued that when no response was received from ADLAB, Bombay (now Mumbai) in spite of specific directions from the Learned Trial Court, the Learned Trial Court ought to have called for scientific enquiry by any other laboratory as prayed for by the appellant-plaintiff to arrive at a just conclusion on the quality of the prints. On the contrary, he has argued that the Learned Trial Court has not even referred to in the impugned judgment dated 07/07/2007 to the earlier orders calling for scientific enquiry. The Learned Trial Court has merely referred to the lack of expert evidence with respect to the raw stock supplied by the appellant-plaintiff and therefore concluded that laches cannot be fastened on the defendant nos.1 to 4. Sri Kali has further argued that in respect of the appellant-plaintiff furnishing necessary documents, including auditor’s report, the Learned Trial Court has brushed aside the same by holding that the plaintiff has failed to prove his case by exhibiting such documents. The Learned Counsel has argued that judgment impugned is vitiated by non-application of mind and is therefore not sustainable. He prays for a remand on the limited point of allowing the results of a scientific enquiry to be placed before the Learned Trial Court for proper adjudication of the claim of the appellant-plaintiff. Sri Pradip Dutta, Learned Senior Counsel appearing for the respondent-defendant nos.1 to 4 has argued on the pure point of law that the onus is on the appellant-plaintiff to prove his claim to damages. He points out that in the facts of the present case the appellant-plaintiff has miserably failed to discharge such onus and factually support such claim to damages from the materials on record before the Learned Trial Court. To a specific question from this Court, Sri Dutta fairly admits that he has no factual instruction from his clients on the issue of the quality of the print nos.2, 3, 4 & 5. He submits that the appeal should be dismissed. This Court has given anxious consideration to the submission of the parties and the materials on record. To a specific question from this Court, Sri Dutta fairly admits that he has no factual instruction from his clients on the issue of the quality of the print nos.2, 3, 4 & 5. He submits that the appeal should be dismissed. This Court has given anxious consideration to the submission of the parties and the materials on record. While this Court finds that the appellant-plaintiff ought to have exhibited the documents produced before the Learned Trial Court and also before this Court in support of his claim, this Court also finds that the Learned Trial Court ought to have exercised jurisdiction vested in it by law to arrive at a just conclusion on facts by carrying its Orders on scientific enquiry to a logical conclusion. It is recorded earlier in this Order the observations of the Learned Trial Court on the application of the appellant-plaintiff under Order 26 Rule 10(i)(A) read with Section 151 of the Code of Civil Procedure to the effect that scientific enquiry is necessary for the purpose of proper adjudication. The Learned Trial Court at the stage of the trial when no report was received from ADLAB, Bombay passed a further Order requiring that ADLAB be informed “at once without any further delay asking them the probable cost for scientific enquiry to be done by them as per prayer of the appellant plaintiff”. The Learned Trial Court, in the interest of proper adjudication even fixed a date for such report and directed a copy of the petition under Order 26 of Rule 10(i)(A) read with Section 151 of the Code of Civil Procedure to be sent to ADLAB for necessary action. However, from the Order impugned dated 07/07/2007 this Court does not find any mention to the efforts of the appellant-plaintiff and the Order of the Learned Trial Court as referred to above on the logical conclusion of such scientific enquiry. On the contrary the Learned Trial Court referred to lack of expert evidence on the quality of raw stock supplied by the appellant-plaintiff to the defendant nos.1 to 4. It is relevant to mention here that from the materials on record it clearly transpires that the raw stock of prints was directly supplied to the defendants by the manufacturer, viz. Kodak and the appellant-plaintiff had no role in handling such raw stock. It is relevant to mention here that from the materials on record it clearly transpires that the raw stock of prints was directly supplied to the defendants by the manufacturer, viz. Kodak and the appellant-plaintiff had no role in handling such raw stock. The role of the appellant-plaintiff was only confined to making the necessary payment for such raw stock in favour of the manufacturer, i.e. Kodak. Order 41 Rules 23, 23A & 25 deal with instances when a case may be remanded by the appellate Court. Order 26 Rule 12(2) of the Code of Civil Procedure reads as follows:- “Proceedings and report put in evidence. Court may direct further enquiry:- “The proceedings and report (if any) of the commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further enquiry as it shall think fit.” Order 26 Rule 10(i)(A) empowers the Court to Order commissions for scientific investigation etc. The said rule reads as follows: - “Commission for scientific investigation. (ii) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him to enquire into such question and report there on to the Court.” From a conjoint reading of Order 26 Rule 10(i)(A) & Order 26 Rule 12(2) of the Code of Civil Procedure this Court finds that the Learned Trial Court erred by not taking its directions for a scientific enquiry to a logical conclusion. This Court is of the opinion that having once held that the results of such scientific investigation could be necessary for proper adjudication, the Learned Trial Court failed to exercise jurisdiction vested in it by law by calling for a report of the scientific investigation from any other laboratory when it discovered that ADLAB, Bombay (now Mumbai) had not responded to its directions. The Learned Trial Court could have even called for an explanation from ADLAB, Bombay (Mumbai) on the reason for its lack of response to the directions passed. The Learned Trial Court could have even called for an explanation from ADLAB, Bombay (Mumbai) on the reason for its lack of response to the directions passed. This Court is also of the opinion that such scientific investigation was correctly called for by the Learned Trial Court for determining the quality of the prints and thereby arrive at a just conclusion on the claim of the appellant-plaintiff. However, this Court finds that this aspect of the matter of scientific enquiry of the quality of prints has not been referred to at all in the impugned judgment. Although this Court is conscious of the fact that the power of remand by the Appellate Court cannot be exercised at random, neither can such power of remand be exercised to enable the appellant-plaintiff to adduce fresh evidence. This Court is also conscious of the fact that in the present case it was necessary to determine the quality of the prints on the basis of the reports called for by the Learned Trial Court. This Court feels surprised that instead of exercising powers under Order 26 Rule 12(2) of the Code of Civil Procedure the Learned Trial Court has not referred to this aspect of the matter at all. This Court therefore cannot help but hold that the Order impugned does not reflect the objective efforts made by the Learned Trial Court in its earlier Orders to arrive at a just finding on facts but, the said impugned order has embarked into the realm of surmises. This Court therefore holds that to arrive at a just finding on facts its necessary to remand the matter to the Learned Trial Court on the limited issue of calling for the report of the scientific enquiry as ordered by it from an appropriate competent body in exercise of jurisdiction vested in it by law. Needless to state the Learned Trial Court would be free to adjudicate the claim of the appellant-plaintiff on merits after obtaining the report of such scientific enquiry. The appeal is thus partly allowed. There will be no order as to costs. Indira Banerjee, J. I have gone through the judgment and order passed by my learned brother. I am, however, unable to agree with my learned brother that the appeal should be remanded to the learned Trial Court. The appeal is thus partly allowed. There will be no order as to costs. Indira Banerjee, J. I have gone through the judgment and order passed by my learned brother. I am, however, unable to agree with my learned brother that the appeal should be remanded to the learned Trial Court. The plaintiff appellant, the sole proprietor of M/s Ranjeeta Enterprises, produced the Bengali feature film “Prem Sangi”. According to the plaintiff appellant, the plaintiff appellant incurred cost of Rs.28,02,545/- in production of the said colour feature film. The plaintiff appellant entrusted the work of developing the first positive print for release of the feature film to the defendant No.1, West Bengal Film Development Corporation. On or about 2nd December, 1997, after the Censor Certificate had been obtained and arrangements for exhibiting the film were made, the plaintiff appellant placed orders on the defendant No. 1 for developing four more positive prints of the film, for release in Kolkata and in the districts. It was allegedly reported to the plaintiff appellant that the 2nd, 3rd, 4th and 5th prints were of poor quality, the same being foggy, hazy and the lighting being insufficient, after which the plaintiff appellant wrote a letter dated 15th December, 1997 requesting the defendants to take proper steps for removal of the defects. According to the plaintiff appellants the concerned defendants did not do anything to remove the defects. The prints being defective, there were few viewers and the cinema hall owners did not exhibit the film for long. The plaintiff appellant contends that the film flopped because of the defective prints and the plaintiff appellant incurred huge losses. The plaintiff appellant filed Money suit No. 5 of 1998 in the Court of the Second Civil Judge, Senior Division at Barasat, North 24 Parganas, claiming damages, on the allegation that the film did not attract viewers on account of defective printing. Summons were served on the defendants. The defendant Nos. 1 to 4 however, did not contest the suit and the suit was heard ex parte. From the written statement filed by Vijaya Bank, added as one of the defendants, it transpires that Vijaya Bank had granted the plaintiff/appellant term loan of Rs.25,00,000/- for production of the said film. Summons were served on the defendants. The defendant Nos. 1 to 4 however, did not contest the suit and the suit was heard ex parte. From the written statement filed by Vijaya Bank, added as one of the defendants, it transpires that Vijaya Bank had granted the plaintiff/appellant term loan of Rs.25,00,000/- for production of the said film. By the judgment and order under appeal, the learned Trial Court dismissed the suit, inter alia holding that the plaintiff appellant had, inspite of opportunities, failed to prove that he had incurred losses or prove that the losses if any, were due to any lapses on the part of the defendants. The onus was on the plaintiff appellant to show that the prints were defective and that the concerned defendants were responsible for the defect. The plaintiff appellant, however, did not adduce any expert evidence to substantiate its claim of the prints being defective. In any case, there is not a scrap of evidence on record to substantiate the contention of the plaintiff that the defendant No.1 was liable for the defects, if any, in the prints. The plaintiff appellant was at best able to substantiate the fact that he had invested a huge amount of money, possibly in excess of Rs.25 lakhs for production of the film. The learned Trial Court rightly took note of the relevant fact that the plaintiff appellant had supplied the Kodac 35 MM films, which were developed through the concerned defendants. It was for the plaintiff appellant to conclusively establish that the prints were defective, and that the defects were attributable to faulty developing and not to defective films supplied by the plaintiff appellant or to inept photography. From the order sheet in Money Suit No. 5 of 1998, it appears that on or about 7th September, 1998, the plaintiff appellant filed an application under Order 26 Rule 10A read with Section 151 of the Civil Procedure Code for an order to send the five positive prints of the feature film “Prem Sangi” to the test house of Prasad Laboratory, Bhubaneswar, Orissa or any other laboratory of the film division for scientific investigation and report. The said application was taken up for orders on 16th October, 2001 whereupon the Court opined that the five positive prints might be sent to the ADLAB, Bombay. The said application was taken up for orders on 16th October, 2001 whereupon the Court opined that the five positive prints might be sent to the ADLAB, Bombay. Directions were given for obtaining the approximate costs of such investigation from ADLAB and the suit was adjourned. The order dated 16th October, 2001 was passed on the application of the plaintiff appellant. It was obviously for the plaintiff appellant to ascertain the cost of investigation from ADLAB. On 7th March, 2002, the suit was again taken up. The Trial Court observed that its order dated 16th October, 2001 had not been complied with. The order had not been communicated to ADLAB and estimate of costs had not been called for from ADLAB. The Court adjourned the suit till 5th July, 2002 and directed that a copy of the Court’s Order dated 7th March, 2002, a copy of the Order dated 16th October, 2001 and a copy of the petition of the plaintiff appellant be sent to ADLAB. It however appears that the plaintiff appellant did not take any steps for compliance of the aforesaid order of the Trial Court. On the other hand, after several years, the plaintiff appellant adduced evidence by way of affidavit of evidence in examination in chief and was also examined in Court. On 9th August, 2006, on the prayer of the Advocate for the plaintiff appellant, the suit was adjourned till 14th November, 2006 for hearing on the point of admissibility of documents. On 10th April, 2007 the plaintiff appellant filed an additional affidavit by way of additional evidence in chief. On 23rd May, 2007, the plaintiff appellant was present on call but no one was present to cross-examine the plaintiff appellant, whereupon evidence was closed. It appears that no documents were exhibited. At no point of time did the plaintiff appellant press its prayer for examination of the prints. There are also no materials at all before us on the basis of which we can arrive at the finding that it was technically possible to determine the liability for the defective print, if any, by examination. The plaintiff appellant deposed as the only witness. In his evidence, he stated that he had produced the film starring Tapash Pal, Debika Mukherjee and Subhendu Chatterjee at a cost of about 28,02,545/-. The plaintiff appellant deposed as the only witness. In his evidence, he stated that he had produced the film starring Tapash Pal, Debika Mukherjee and Subhendu Chatterjee at a cost of about 28,02,545/-. He deposed that he had entrusted the defendant No. 1 with the first positive release print of the film. On 2nd December, 1997 he placed orders for four positive prints of the feature film being the print Nos. 2, 3, 4 and 5. In evidence the plaintiff appellant admitted that he had supplied the Kodac 35 MM films (K6) to the defendants and the defendants delivered the positive prints to the plaintiff appellant. The plaintiff appellant claimed that he had taken all steps for pre-release of the film, for which he incurred a huge amount on hoardings, banners etc and he booked Khanna, Aruna and Indira cinema halls. The plaintiff appellant has stated that after the feature film was exhibited in Aruna on 12th December, 1997, the plaintiff appellant received a complaint from the representative of the booking agent regarding poor quality of print, whereupon he rushed to the cinema hall and saw the actual condition of the print himself. The defendant has deposed that he complained to the defendant No. 1 regarding the defect in print Nos. 2, 3, 4 and 5 but no steps were taken. The defendants did not rectify the defects. The film was only shown for a week. Relying on views published in the ‘Bartaman’ and the ‘Pratidin’, the plaintiff appellant contended that the film produced by the plaintiff appellant was a good one, containing melodious songs sung by reputed singers like Asha Bhosle, Anuradha Paudwal and Kumar Shanu. The actors and actresses all performed well. The plaintiff appellant finally stated that the printing fault would be apparent from the fact that the concerned defendants have not undertaken any printing job in the laboratory in question since delivery of the defective prints. The defendants were getting prints done from different laboratories at Madras and Bombay. The plaintiff appellant has deposed that the first print on the basis of which censor certificate had been granted was alright. It was the subsequent four prints (Print Nos. 2 to 5) that were completely foggy and hazy. It is the case of the plaintiff appellant that the film flopped as a result of the defect in print nos. The plaintiff appellant has deposed that the first print on the basis of which censor certificate had been granted was alright. It was the subsequent four prints (Print Nos. 2 to 5) that were completely foggy and hazy. It is the case of the plaintiff appellant that the film flopped as a result of the defect in print nos. 2 to 5 as a result of which the plaintiff appellant incurred loss and damages. No attempt was made to prove that the film flopped by reason of defective print. The reports of the cinema halls were not proved. No witnesses from the concerned cinema halls were examined. No viewer was examined. The plaintiff appellant did not state facts and figures relating to the sale of tickets. There is no evidence to show that the halls were full on the first day or two but later the sale of tickets gradually dropped due to defective prints. The plaintiff appellant also did not disclose sales figures of the cinema hall in which the first print, which was admittedly free from defect, was shown. There is not a whisper in the evidence of the length of time for which the film was exhibited in the hall in which the first print was exhibited. In the appeal, the plaintiff appellant took out an application being CAN 9155 of 2013 under Order 41 Rule 27 for orders permitting the plaintiff appellant to adduce additional evidence. The said application is totally vague. There is not a whisper in the said application of any evidence that was not within the knowledge of the plaintiff appellant then or could not be produced in the Trial Court inspite of due diligence. It is nobody’s case that the Trial Court refused to admit any evidence, that ought to have been admitted. No order was passed on the said application in the absence of mention of any document, which the Court might have required, to enable it to pronounce judgment or for any other substantial cause. In my considered opinion, the plaintiff appellant miserably failed to discharge its onus of proving its claim in the Court below. The suit, has, therefore, rightly been dismissed. In my considered opinion, the plaintiff appellant miserably failed to discharge its onus of proving its claim in the Court below. The suit, has, therefore, rightly been dismissed. Order 41 Rule 23 of the Civil Procedure Code enables the Appellate Court to remand a case, whether 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. Order 21 Rule 23 has no application in this case. Order 41 Rule 23A however provides that where the Court from whose decree an appeal is preferred has disposed of the case, otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as under Rule 23 for remand. In the instant case, the decree is not liable to be reversed having regard to the materials on record and the question of remand and direction for re-trial does not arise. Order 41 Rule 25 is also not attracted since it is not the case of the plaintiff appellant that the Trial Court has omitted to frame any issue. Order 26 Rule 10-A of the Civil Procedure Code provides as follows:- “10-A. Commission for scientific investigation.- (1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court. (2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.” Order 26 Rule 10A is a discretionary enabling provision. Where any question arising in a suit involves any scientific investigation, which cannot, in the opinion of the Court, be conducted before the Court conveniently, the Court may, if it thinks necessary or expedient in the interests of justice, so to do, issue a commission to such person as it thinks fit, directing him to enquire into such question and report thereon to the Court. Before calling for a report under Section 10A, this Court has to be satisfied that the person and/or the body from whom the report is sought has the necessary technical expertise to conduct the scientific investigation required. In this case, on the prayer of the plaintiff appellant the Trial Court issued directions for obtaining the costs of scientific investigation from ADLAB. The plaintiff appellant did not carry out the order. Almost six months later, when the Trial Court found that its order of 16th October, 2001 had not been complied with, it again issued directions for communication of the orders of the Court to ADLAB along with a copy of the petition of the plaintiff appellant. This does not appear to have been done. The order for obtaining an estimate of the costs of investigation from ADLAB having been passed on the application of the plaintiff appellant, who did nothing to implement the said order, the Trial Court rightly proceeded with the adjudication of the suit on merits. It was not for the Trial Court to communicate its order to ADLAB or to enforce its orders in the absence of any prayer for enforcing compliance of the said order. There can be no doubt that the Court has a duty to pass just orders and ensure that justice is done. However, it is no part of the Court’s duty to dig out evidence on behalf of any party to a suit. In the absence of any materials, on the basis of which we can be satisfied that ADLAB or any other laboratory has the necessary expertise to make the required investigation, remanding the suit and directing re-trial, will be an exercise in futility. As my learned brother has rightly observed, the scope of remand by the Appellate Court is limited. The power of remand should be exercised sparingly and cautiously to prevent injustice by reason of the refusal and/or failure of the Trial Court to consider issues and/or to consider evidence which if considered, might have led to a different result altogether. This Court cannot remand suits to give any party opportunity to re-agitate the same issues and improve upon its evidence. This is not permitted in law. I am of the view that the suit has rightly been dismissed by the Trial Court and this appeal is liable to be dismissed. This Court cannot remand suits to give any party opportunity to re-agitate the same issues and improve upon its evidence. This is not permitted in law. I am of the view that the suit has rightly been dismissed by the Trial Court and this appeal is liable to be dismissed. LATER: Since we have not been able to agree, this appeal is liable to be referred to a 3rd Judge. The appeal may be placed before the Hon’ble The Chief Justice for assignment to a 3rd Judge. Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.