- (1.) THE defendants-appellants have challenged in order dated 14. 8. 05 passed by the Addl. District Judge No. 2, Bundi, whereby the judgment and decree dated 25. 2. 97 passed by the Judicial Magistrate, Bundi in Suit No. 453/86 was reversed and the case was remanded back to the trial Court.
(2.) THE brief facts of the case are that the respondents (hereinafter to be referred as `the plaintiffs) filed a suit against the appellants (hereinafter to referred as `the defendants' ). According to the plaint, the plaintiff claimed that on 12. 3. 81 a will was executed by Mst. Pari in favour of the plaintiff. But even earlier the plaintiff was in possession of the house in dispute. But, the defendants took forceful possession of the house. THErefore, he filed a suit for permanent injunction and also sought a decree in the nature of mandatory injunction. He also prayed that the possession of the house, forcefully taken by the defendants, should be returned to him. THE defendants, in their written statement, denied the plaintiff's possession and ownership. According to them Mst. Pari was not plaintiff's grandmother. Infact, the house in dispute was self-acquired by Gomda. Mst. Pari was only wife of Gomda through the `nata' tradition. THE defendant further claimed that in Sumvat 2029 a will was executed by Gomda in their favour and his last will was executed in favour of defendant No. 2. THErefore, the will claimed by the plaintiff has no value. THEy also raised the plea of adverse possession. In order to prove his case the plaintiff examined five witnesses. THE defendants on the other hand examined seven witnesses. Considering the pleadings of the parties, the trial Court framed seven issues which are as under:- *** After going through the oral and documentary evidence vide judgment dated 25. 2. 97, the trial Court dismissed the suit of the plaintiff. Consequently, the plaintiff preferred a First Appeal. Vide judgment dated 14. 8. 2001, the learned judge partly allowed the appeal, concluded that issues No. 1, 2, 4 and 5 were wrongly framed, re-framed these issues and remanded the suit with a direction to record the evidence of the parties afresh on these issues and to decide the matter. The amended issues are as under:- *** Mr. Amit Jindal, the learned counsel for the appellant has contended that there was sufficient evidence before the appellate Court to decide the case on its own, rather than remanding the case back to the trial Court. In the alternative, in case the appellate Court came to the conclusion that the issues should be re-framed, it had ample power to re-frame the issues and to take additional evidence at the appellate stage and to decide the case itself. Thus, the power given under Order 41 Rules 24 and 25 CPC could have been exercised by the learned Judge. But, he failed to do so. Instead, he has reversed the entire judgment, re-framed the issues and sent them for a retrial to the trial Court. Therefore, the learned Judge has failed to exercise the jurisdiction vested in it. On the other hand. Mr. S. K. Jain, the learned counsel for the respondent, has contended that the learned Judge had rightly concluded that the issues were not framed properly. The learned Judge has ample powers to remand the case back a power well exercised by the learned Judge. Hence, he has supported the impugned order. It has come to the notice of this Court that repeatedly the learned appellate Courts are remanding the case back to the trial Court in a routine and mechanical manner. The power to remanded a case is contained in Section 107 C. P. C. and in Order 41 Rule 23 to 26a of C. P. C.
(3.) SECTION 107 CPC Reads as under:- ``107. Powers of Appellate Court- (1) Subject to such conditions and limitations as may be prescribed an Appellate Court shall have power- (a) to determine a case finally; (b) to remand a case. (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. '' Order 41 Rule 23 to 26-A of CPC reads as under:- ``23. Remand of case by Appellate Court- Where 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, the Appellate Court may, if it thinks fit, by order remanded the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject all just exceptions, be evidence during the trial after remand. 23-A Remand in other cases.- 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 it has under Rule 23. 24. Where evidence on record sufficient, Appellate, Court may determine case finally- Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resetting the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. 25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from- Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required. and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time. 26. Findings and evidence to be put on record- Objections to finding- (1) Such evidence and findings shall form part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding. (2) Determination of appeal - After the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal. 26-A. Order of remand to mention date of next hearing- Where the Appellate Court remands a case under Rule 23 or rule 23a, or frames issues and refers them for trial under rule 25, it shall fix a date for the appearance of the parties before, the Court from whose decree the appeal was preferred for the purpose of receiving the directions of that Court as to further proceedings in the suit. '' A holistic reading of these provisions clearly reveal that the Appellate Court has the same powers and can perform, as nearly as may be, the same duties as are conferred and imposed by the Code on the courts of original jurisdiction. Moreover, it has ample power to re-frame issues and to take additional evidence on those issues and to decide the case at the appellate stage itself. The power to remand a case back to the trial Court is, of course, a vast power. However, the more vast the power, the more sparingly it should be used. Therefore, cases should not be remanded back to the trial Court in a routine and mechanical manner. If there is sufficient evidence for the Appellate Court to pronounce the judgment even if it resettles the issues, it is for the Court to finally determine the suit. While resetting the issues under Order 41 Rule 27 and 28, the Appellate Court has sufficient power to take additional evidence at the appellate stage. Since power exists, the Appellate Court should exercise the said power. In case the trial Court has omitted to frame or to try any issues or to determine any question of fact, which appears to the Appellate Court to be essential for the right decision of the case of suit, the Appellate Court can frame thee issues, refer them to the trial Court and direct the Court to take additional evidence. But, such direction must also provide a time bound frame within which the evidence should be recorded. Once the evidence is recorded, such evidence should be returned back to the Appellate Court, for the Appellate Court to decide the case. Since the Appellate Court is presided by the District Judge, a Judge who has vast experience and knowledge, he is expected to invoke the power; under Order 41 Rule 24 and 25 CPC in the first instance. It is only in the rarest of the rare case that he is expected to invoke his power under Order 41 Rule 23 and 23-A. ;