JUDGMENT
S.M.M. Alam, J.
1. This Miscellaneous Appeal has been preferred by the plaintiff-appellant against the judgment dated 5.2.2002 passed by 1st Additional District Judge, Buxar in Title Appeal No. 6 of 2001/12 of 2001 whereby he has been pleased to remand the entire suit for fresh decision without giving any finding on any issues discussed by the trial court.
2. The learned Advocate of the appellant while challenging the impugned judgment submitted that the said order of the appellate court is illegal. The learned Advocate submitted that in the Code of Civil Procedure (in short “C.P.C.”) there are three provisions contemplating remand by the court of appeal. The said provisions are contained under Rules 23, 23A and 25 of Order XLI of C.P.C. and since the order of remand is not in accordance with the provisions contained under the abovementioned rules, as such the same is bad in law and must be set aside. The learned Advocate further submitted that by the impugned judgment, the suit was remanded in order to facilitate the defendant-State of Bihar to adduce additional evidence but the impugned judgment will show that the appellate court has already accepted the additional evidence by admitting documents and marking the same as Exhibits B, C, D and D/1 and as such, there was absolutely no necessity for the appellate court to remand the suit. The learned Advocate further submitted that the order of remand is not according to the provisions contained under Order XLIII Rule 1A of the C.P.C. and as such, the same should be set aside.
3. From perusal of the impugned judgment it appears that the order of remand was passed to facilitate the parties specially the defendants-respondents (State of Bihar) to adduce additional evidence. Such power of allowing production of additional evidence and the procedure of taking such evidence are contained in Rules 27, 28 and 29 of Order XLI C.P.C. For better appreciation, Rules 27, 28 and 29 of Order XLI are reproduced below:
Production of additional evidence in Appellate Court-
(1) The parties to an appeal shall not be entitled t produce additional evidence, whether oral or documentary, in the Appellate Court. But
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.
the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”
“Rule 28 Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the court from whose decree the appeal is preferred, or any other subordinate court, to take such evidence and to send it when taken to the Appellate Court.”
“Rule 29 Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined, and record on its proceedings the points so specified.”
4. From plain reading of the wording of the above mentioned rules it appears that for recording additional evidence, there is no provision for remand of the entire suit and, therefore, I am of the view that on this score alone, the impugned order is bad in law.
5. The provisions of remand of the suit are contained under Order XLI Rules 23, 23 A and 25 of the C.P.C. Rule 23 of Order XLI of the C.P.C. runs as follows
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 remand 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.
Rule 23 A of Order XLI of the C.P.C. runs as follows:
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.
Rule 25 of Order XLI of the C.P.C. runs as follows:
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.
6. From plain reading of the above mentioned provisions it is clear that the appellate court can remand the suit to the trial court in following cases:
(1) When the trial court has disposed of the suit upon a preliminary point and decree is reversed in appeal.
(2) When the trial court has disposed of the suit otherwise than on a preliminary point and the decree is reversed in appeal and a re-trial is considered necessary and
(3) When the trial court has omitted to frame or try any issue or to determine any question of fact which is essential for right decision of the suit.
Former two cases are covered under Rules 23 and 23A whereas the last case is covered by Rule 25 of Order XLI C.P.C. In former two cases, as provided under Rules 23 and 23A the entire suit can be remanded only after reversing the decree of the trial court but in last case there is no need of remand of entire suit.
The perusal of the impugned judgment shows that the learned first appellate court has not reversed any finding of the trial court on any point (either on preliminary point or otherwise) and has remanded the entire suit to the trial court for fresh trial which is not in accordance with the provisions of law contained in Rules 23 and 23A of the C.P.C. As regards remand of suit under the provisions of Rule 25 of Order XLI C.P.C. I have to say that under this rule the power of remand of appellate court is limited to issuing direction to the trial court to take additional evidence and to give its finding on any particular point/issue which was not considered by the trial court but the entire suit cannot be remitted back to the trial court for fresh trial and therefore, on this score also the impugned judgment is bad in law and as such, I am of the view that it must be set aside.
7. In the result, I find merit in this appeal and as such, the same is hereby allowed and the judgment dated 5.2.2002 passed by the Additional District Judge, Buxar in Title Appeal No. 6 of 2001/ 12 of 2001 whereby he has been pleased to remand Title Suit No. 109/2000 for fresh trial, is hereby set aside and the appellate court is directed to dispose of the appeal itself on the basis of the materials already available on record.