Bela M. Trivedi, J. - (1.) The present appeal has been filed under Order 43, Rule 1 (u) of CPC, challenging the judgment and order dated 22.9.94 passed by the Addl. District Judge No.3, Jaipur City, Jaipur (hereinafter referred to as 'the appellate court') in Civil Regular Appeal No. 11/94, whereby the appellate court while setting aside the judgment and decree dated 18.5.94 passed by the Addl. Munsif No.4, Jaipur City, Jaipur (hereinafter referred to as 'the trial court') in Civil Suit No. 160/84, remanded the matter to the trial court for deciding the two issues framed by the appellate court.
(2.) The short facts giving rise to the present appeal are that the original appellant-plaintiff Smt. Khatoon Dukhtar had filed the suit for eviction against the original defendant Kalu Dhobi. The said defendant expired during the pendency of the suit and the present respondents were substituted in his place. The original appellant-plaintiff died during the pendency of the present appeal and her heirs were permitted to be substituted in her place, as per the order dated 28.2.11. It was alleged in the suit interalia that the suit property being House No. 123, Maniharon Ka Rasta, Jaipur was the joint property of Gulam Moiududdin and his brother Saiduddin; and that after the partition of the said property, the said house came into the share of Saiduddin. According to the appellant-plaintiff, the appellant purchased the said property from the said Saiduddin by executing a registered sale-deed on 19.2.79. It was further case of the appellant-plaintiff that at the time when he purchased the property, the defendant Kalu was the tenant of Saiduddin in respect of the suit property. Since the said defendant Kalu did not pay the arrears of rent and committed defaults in making the payment of the rent, the suit was filed for recovery of possession of the suit house from the said tenant. The said suit was resisted by the defendant Kalu by filing the written statement denying the allegations and the averments made in the plaint contending interalia that Saiduddin was not the owner of the suit property and could not have sold the same to the plaintiff. The defendant also denied the title of the plaintiff and further contended that he i.e. the defendant Kalu was staying in the suit house as the licensee of the Gulam Moiduddin and after the death of Gulam Moiduddin, the property being Aatiyaraj was taken over by the PWD and that the said Kalu was paying rent to the PWD. It appears that the written statement filed by the defendant was amended contending interalia that he had purchased the property from PWD vide the sale deed dated 31.1.91 during the pendency of the suit and as such he had become the owner of the suit house. The trial court from the pleadings of the parties framed the following seven issues:- (1)...[VERNACULAR TEXT OMITTED]... (2)...[VERNACULAR TEXT OMITTED]... (3)...[VERNACULAR TEXT OMITTED]... (4)...[VERNACULAR TEXT OMITTED]... (5)...[VERNACULAR TEXT OMITTED]... (6)...[VERNACULAR TEXT OMITTED]... (7)...[VERNACULAR TEXT OMITTED]... 4. The trial court after appreciating the evidence on record decreed the suit of the appellant-plaintiff holding that the plaintiff was the landlord of the suit property and that the PWD was not the necessary party in the suit, vide the judgment and decree dated 18.5.94. Being aggrieved by the same, the respondents had preferred the appeal being No. 11/94 before the appellate court. The appellate court framed the two points for determination for the purpose of appeal. They were as under:- (1)...[VERNACULAR TEXT OMITTED]... (2)...[VERNACULAR TEXT OMITTED]... 5. The appellate court, after appreciating the evidence on record and hearing the learned counsels for the parties set aside the judgment and decree passed by the trial court and further remanded the case to the trial court directing it to decide the said two points raised by it afresh, vide the impugned judgment and order. Being aggrieved by the said order passed by the appellate court, the present appeal has been filed by the appellant-plaintiff. 6. It has been sought to be submitted by the learned counsel Mr. M.M. Ranjan for the appellants that the appellate court should not have remanded the case to the trial court for deciding the two issues which were already framed and decided by the trial court. According to Mr. Ranjan, the appellate court has committed an illegality in not giving its findings on the said issues and in remanding the case without any justifiable reasons. 7. However, the learned counsel Mr. Z.A. Naqvi for the respondents supporting the judgment and order passed by the appellate court has submitted that there was no specific issue framed by the trial court as to whether there was any relationship of landlord and tenant between the parties or not and, therefore, the appellant court has rightly remanded the case to the trial court for deciding the said issue along with the issue as to whether the PWD was the necessary party or not. He also submitted that even if it is construed that the trial court had decided the said issues, the said issues were wrongly decided by the trial court as discussed by the appellate court in the impugned order. According to him, no interference is called for in the impugned judgment and order passed by the appellate court. 8. In the instant case, the short question that arises before this court is as to whether the appellate court was justified in remanding the case to the trial court for deciding the two issues which were already framed and decided by the trial court From the issues framed by the trial court, which are also reproduced in the impugned order, it appears that the issue No. 2 and 3 were specifically framed as to whether the plaintiff was the landlord of the suit premises or not, and whether the defendants had denied the title of the plaintiff in respect of the suit premises. The issue No.4 framed by the trial court was as to whether the PWD was the necessary party in the suit or not. From the judgment and decree passed by the trial court it clearly transpires that the said issues were discussed in detail and decided by the trial court in favour of the plaintiff while decreeing the suit. The appellate court in the impugned judgment again framed the two issues as stated herein above and instead of deciding the same by itself, remanded the case to the trial court for deciding the same afresh. 9. It is pertinent to note that power of remand under Rule 23AORDER41, could be exercised by the appellate court when the trial court had disposed of the case otherwise than on a preliminary point, and when the decree in appeal is reversed and, a retrial is found necessary. On these two conditions being satisfied, the appellate court can exercise the same power under Rule 23A as under Rule 23. Further, the validity of remand of the case has to be tested by reference to Rule 25 also. The appellate court can not remand the case if the case is not covered either under Rule 23or Rule 23A or Rule 25. A beneficial reference of the decisions of the Apex Court in this regard be made in case of Municipal Corporation, Hyderabad v. Sunder Singh, AIR 2008 SC 2579 and in case of P. Purushottam Reddy and Anr. v. Pratap Steels Ltd., (2002) 2 SCC 686 . The Apex Court in the latest case of Jegannathan v. Raju Sigamani and Anr., (2012) 5 SCC 540 , has laid down the scope of remand as under:- "6.Order 41 Rule 23 is invocable by the appellate Court where the appeal has arisen from the decree passed on a preliminary point. In other words, where the entire suit has been disposed of by the trial Court on a preliminary point and such decree is reversed in appeal and the appellate Court thinks proper to remand the case for fresh disposal. While doing so, the appellate Court may issue further direction for trial of certain issues. 7.Order 41 Rule 23-A has been inserted in the Code by Act No. 104 of 1976 w.e.f. February 1, 1977. According to Order 41 Rule 23-A of the Code, the appellate Court may remand the suit to the trial Court even though such suit has been disposed of on merits. It provides that where the trial Court has disposed of the Suit on merits and the decree is reversed in appeal and the appellate Court considers that retrial is necessary, the appellate Court may remand the suit to the trial Court. 8.Insofar as Order 41 Rule 25 of the Code is concerned, the appellate Court continues to be in seisin of the matter; it calls upon the trial Court to record the finding on some issue or issues and send that finding to the appellate Court. The power under Order 41 Rule 25 is invoked by the appellate Court where it holds that the trial Court that passed the decree omitted to frame or try any issue or determine any question of fact essential to decide the matter finally. The appellate Court while remitting some issue or issues, may direct the trial Court to take additional evidence on such issue(s)." 10. In the instant case, neither the suit was decided by the trial court on the preliminary point, nor the appellate court had found that retrial was necessary. Hence, none of the conditions as contemplated under Rule 23 or Rule 23A existed. The appellate court had also not found that any additional evidence for any additional issue was required to be led in the matter. When the requisite issues were already framed and decided by the trial court, the appellate court was expected to examine the findings of the trial court and give its own findings thereon and not remand the case. As observed by the Apex Court in catena of decisions, as unwarranted order of remand gives the litigation an undeserved lease of life and therefore must be avoided. An order of remand cannot be passed on ipse dixit of the court. 11. In that view of the matter, it is held that the impugned order passed by the appellate court is erroneous, illegal and deserves to be set aside. Accordingly the impugned order dated 18.5.94 passed by the appellate court is set aside. The appellate court is directed to decide the appeal on merits on the evidence available on the record, as expeditiously as possible. The appeal stands allowed accordingly. Both the parties are directed to remain present before the appellate court on 8.7.2013. Appeal Allowed.;