JUDGMENT
L. Narasimha Reddy, J.
1. The Respondents 2, 3 and 4, in A.S. No. 91 of 2000, on the file of HI Additional District Judge, Ranga Reddy District, Hyderabad, are the appellants in this C.M.A. They challenge the judgment, dated 22.7.2003, passed by the lower Appellate Court, remanding the matter for fresh disposal to the Trial Court.
2. The first respondent herein filed O.S. No. 385 of 1991, on the file of II Additional Senior Civil Judge, Ranga Reddy District, for the relief of specific performance of an agreement of sale, dated 30.4.1987, and for perpetual injunction, in respect of the suit schedule property. She pleaded that the father of the appellants, by name, Jangaiah, who was impleaded as Defendant No. 1, was the owner of the land in Survey Nos. 17 and 18 of Kothaguda Village, Sherilingampally Mandal. He is said to have entered into an agreement of sale in favour of two persons, by name, Mallaiah and Sathaiah, to sell an extent of one acre of land. It was pleaded that she entered into an agreement of sale, with Mallaiah and Sathaiah to purchase an extent of 2509 square yards, out of one acre, on 3.9.1985. She contended that, at the instance of her proposed vendors, the first defendant himself executed an agreement of sale, dated 30.4.1987, to transfer an extent of 1494 square yards, forming part of 2509 square yards referred to, in the agreement of sale, dated 3.9.1985. The entire consideration of Rs. 44,820/- is said to have been paid, and that possession was also delivered.
3. The father of the appellants, the first defendant filed written statement denying the existence of any agreement of sale between himself on the one hand, and Mallaiah and Sathaiah on the other hand, as well as the execution of the agreement of sale, dated 30.4.1987, in favour of the first-respondent.
4. Before the Trial Court, PWs. 1 and 2 were examined on behalf of the first respondent, and Exs.A-1 to A-19 were marked. On behalf of the appellants herein, DWs.1 and 2 were examined and Exs.B-1 and B-2, and Ex.X-1 were marked. The Trial Court dismissed the suit, through its judgment, dated 4.9.2000.
5. The first respondent filed A.S. No. 91 of 2000, before the Court of III Additional District Judge, Ranga Reddy. Through the judgment under appeal, the lower Appellate Court remanded the matter, for fresh disposal, by observing that the reasoning assigned by the Trial Court for not believing the document Exs.A-13 to A-19, is not sound and that certain additional documents, which were filed by the first respondent through IA Nos. 2931 of 2000 and 76 of 2002, deserve to be taken on record.
6. Learned Counsel for the appellants, Sri C.V. Nagarjuna Reddy submits that there is a basic fallacy in the order under appeal, in that, the lower Appellate Court did not set-aside the decree of the Trial Court while remanding the matter. He further submits that when the Trial Court framed several issues and additional issues touching on vital aspects of the matter, there was no justification on the part of the lower Appellate Court to have considered all of them under a single point. He further contends that acceptance of additional evidence, at the stage of an appeal is not a matter of course, and the lower Appellate Court was under an obligation to assign valid and cogent reasons, before allowing such additional evidence to be taken on record. He contends that the Trial Court dealt with several contentions, such as, the truth of the agreement of sale between D-1 and the two persons referred to above, that of the agreement of sale, marked as Ex.A-10, competence of D-1 to transfer the suit schedule property etc., whereas, the entire discussion undertaken by the lower Appellate Court turned around the proof and relevance of Exs.A-13 to A-19. He contends that before expressing its dissatisfaction about the findings of the Trial Court, on the said aspect, the lower Appellate Court ought to have discussed the matter from other angles also.
7. Sri Fazal Yousuffuddin, learned Counsel for the contesting respondents, on the other hand, submits that the refusal by the Trial Court to take Exs.A-13 to A-19 in to account, was on hyper technical grounds, and in effect, the lower Appellate Court did nothing more than to put the record straight, after giving opportunity to both the parties. He further contends that the omission to set aside the decree of the Trial Court is accidental and is of no consequence.
8. The first respondent filed the suit for specific performance and perpetual injunction on the basis of an agreement of sale, dated 30.4.1987, marked as Ex.A-10. She pleaded the circumstances under which the agreement came to be executed. The first defendant was alive up to a substantial point of time, subsequent to the filing of the suit. He filed written statement denying the execution of the agreement and resisted the suit. Initially, the Trial Court framed two issues; namely:
(1) Whether the plaintiff is entitled for specific performance as prayed for; and
(2) Whether the plaintiff is entitled for permanent injunction as prayed for.
Later on, six additional issues were framed as under:
(1) Whether first defendant Jangaiah has ever sold the property and delivered possession to Mallaiah and Sathaiah?
(2) Whether the agreement of sale, dated 3.9.1985 is true and valid?
(3) Whether the agreement, dated 30.4.1987 is true valid and executed by Dl?
(4) Whether entire sale consideration is paid to D-1?
(5) Whether the plaintiff is entitled for specific performance relief ?
(6) Whether Defendants 2 to 4 are bound by the suit agreement?
9. On behalf of the first respondent, PWs.1 and 2 were examined and Exs.A-1 to A-13 were marked. On behalf of the appellants, DWs.1 and 2 were examined and Exs.B-1, B-2 and Ex.X-1 were marked. The Trial Court answered all the issues and additional issues in favour of the respondents. Aggrieved thereby, the first respondent preferred an appeal. She filed two applications, namely, LA. No. 76 of 2002 and LA. No. 2931 of 2000, under Rule 27 of Order 41 C.P.C for receiving additional evidence. The record does not disclose whether those applications were ordered. The lower Appellate Court did not frame any points for consideration. The only point framed by it was “whether the judgment and decree passed by the Trial Court is liable to be set aside?”
10. The requirement to frame points in an appeal is emphasized under Rule 31 of Order 41 CPC. The framing of points for determination would enable the Court to address various aspects of controversy and to approach them in a systematic manner. It is true that there are precedents to the effect that omission to frame points for consideration by an Appellate Court is not fatal, if it had addressed all the issues that fell for consideration before the Trial Court. In the instant case, the lower Appellate Court did frame points for consideration on various aspects; and has chosen to deal with only one aspect of the matter, namely the proof of Exs.A-13 to A-19. It did not undertake any discussion on the important aspects and issues, such as the truth and genuineness of Ex.A-10, the capacity of DW-1, to sell the property and the entitlement of the first respondent to seek a decree for specific performance in the light of the provisions of the Specific Relief Act. Therefore, there was a clear lapse on the part of the lower Appellate Court in this regard.
11. A party to an appeal is entitled to place additional evidence before the Appellate Court, if he satisfies the requirement under Rule 27 of Order 41 C.P.C. The Appellate Court is required to record reasons, before it accedes to the request. On accepting such a request, the said Court may require the Trial Court to record the evidence and send the same to the Appellate Court, or may choose to record the evidence by itself. The lower Appellate Court has not chosen to consider the admissibility or otherwise of the additional evidence that was sought to be placed before it, through the applications referred to above. It had straightaway remanded the matter to the Trial Court, simply, by observing that the reasoning assigned by the Trial Court in respect of Exs.A-13 to A-19 is not sound.
12. Another important aspect is that whenever an Appellate Court chooses to remand the matter to the Trial Court for fresh consideration, it has invariably to set aside the decree and judgment under appeal. Unless the judgment and decree of the Trial Court are set aside, the exercise to be undertaken after remand, would result in an anomalous situation. While the decree and judgment passed by the Trial Court would still be in force, it would be required to undertake another round of adjudication. The lower Appellate Court has not chosen to set-aside the judgment and decree in an appeal before it and has simply remanded the matter to the Trial Court for fresh consideration. There is a clear inconsistency in such a course of action. In fact, this ground is sufficient to set aside the judgment under appeal.
13. Further, remand cannot be resorted to by an Appellate Court as a matter of course. It is only when the Appellate Court-feels that the Trial Court omitted an important aspect from its consideration that it can consider the feasibility of remanding the matter. Otherwise, it may amount to abdication of the duties to exercise the powers of an Appellate Authority or Court. An appeal Under Section 96 C.P.C., is in fact the continuation of suit. The Appellate Court can resort, to step of remand, only when a specific finding is recorded as to the deficiencies in the matter of disposal of suit by the Trial Court. The fact that a different view is possible on an issue in the suit, is not at all a ground to remand. In such a case the Appellate Court can certainly come to its own conclusion, duly furnishing the reasons therefor. There existed half a dozen issues on several important aspects in the instant case. Each of other issue is dealt with by the Trial Court. The lower Appellate Court was not justified in remanding the matter by making certain superficial observations.
14. For the foregoing reasons, the C.M.A is allowed, and the order under appeal is set-aside. The lower Appellate Court is directed to hear the appeal and dispose it of, afresh on merits. Consequent on remand, the Trial Court is said to have recorded evidence in relation to the documents sought to be introduced through LA. No. 2939 of 2000 and 76 of 2000. Such an exercise cannot be permitted to go waste. It is also represented that the appellants did not seriously oppose the recording of the said evidence. Therefore, the Trial Court shall complete recording such additional evidence and send the same to the Appellate Court, together with the suit record, at the earliest. The Lower Appellate Court shall hear and dispose of the appeal soon after it receives the record from the Trial Court. There shall be no order as to costs.