{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 1 OF 2011 Ramakant s/o Narhari Shewale, aged: 58 years, Occ: Sewa Gurav at Ghrushneshwar Mandir Deosthan, R/o Opposite Shankarsing Naik High School Line, Balaji Nagar, Aurangabad. Appellant Versus 1 Vinod s/o Madhavrao Shewale, aged 35 years, Occ: Pujari, R/o Samarth Nagar, Devgiri Colony, Aurangabad. 2 Chandrashekhar Balkrishna Shewale, aged: 51 years, Occ: Trustee, Member of Shri Ghrushneshwar Mandir Deosthan, Ellora, District Aurangabad. 3 Shri Ghrushneshwar Mandir Deosthan Trust, Shri Kherda Verul, Tahsil Khultabad, District Aurangabad, through its President Shri Umakant Krishnakant Joshi. Respondents Mr.Pradeep Marpakwar, advocate for the appellant. Mr.U.S.Malte, advocate for respondents no.1 & 2. {2} CORAM : R.M.BORDE, J. Reserved on: 06 th April, 2011 Pronounced on:13 th April, 2011. JUDGMENT: 1 Appellant – original plaintiff has approached this Court raising exception to the judgment and decree passed by District Judge-1, Aurangabad, dated 30.11.2010 in Regular Civil Appeal No.103/2010. 2 Appellant herein, referred to as the plaintiff, instituted Regular Civil Suit No.230/2009 claiming a declaratory decree that letter dated 02.09.2005, issued to defendant no.2-Trust by Shewale family, is arbitrary and illegal. Plaintiff also sought a declaration that he is entitled to render services at Shri Ghrushneshwar Temple, Verul, for a period of three months, out of the period of one year prescribed for Shewale family. Plaintiff also sought a declaration that he is entitled to receive the amount collected in ‘Dan Peti’ during the disputed period of 45 days, which is detained and blocked by defendant no.2. Plaintiff also sought a restraint order against defendants, their agents or servants from causing any obstruction or interference to the plaintiff in performing ‘seva’ for a period of three months. 3 Appeal is admitted and taken up forthwith for final disposal. {3} 4 The dispute relates to the period of performance of ‘seva’ allotted to the plaintiff in view of the arrangement arrived at between the members of Shewale family. Plaintiff and members of Shewale family are ‘Seva Gurav’ of Shri Ghrushneshwar Mandir Deosthan, Verul. Plaintiff and members of Shewale family have been offering services at the temple in rotation. The members of Shewale family and Dandge family have been allotted a period of one year each for rendering services to the God. The person whosoever performs ‘seva’ is entitled to receive income from the offerings to the God in the form of cash, coconuts, clothes and other offerings. Defendant No.1 Vinod Shewale is son of Madhavrao Shewale. Madhavrao and Ashok together are allotted one month’s period for performing ‘seva’ and the rotation was to come to an end on 03.09.2005. According to the plaintiff, defendant no.1 was supposed to hand over the rotation to the plaintiff since the next day, however, defendant no.1 refused to do so. Instead of that, he addressed a letter on 02.09.2005 to the Trust and contended that the plaintiff cannot be given rotation for a period more than 45 days. According to the plaintiff, the letter is arbitrary and illegal and contrary to the arrangement made amongst the members of Shewale family themselves. According to the plaintiff, he is entitled to perform ‘seva’ for a period of 90 days as per the prevailing practice. The Trust, on receipt of the letter from defendant no.1, issued communication to the Assistant {4} Charity Commissioner, seeking his advise in the matter. The Assistant Charity Commissioner advised to get resolved the dispute from Civil Court. Plaintiff thereafter approached the Joint Charity Commissioner seeking direction under Section 41 of the Bombay Public Trusts Act. The Joint Charity Commissioner, by order dated 01.10.2005, directed the plaintiff to approach the Civil Court and the Joint Charity Commissioner, in the meantime, made certain interim arrangement in respect of rendering services to the God by the members of Shewale family. Plaintiff, as such, approached the trial Court and sought the reliefs, as stated above. 5 Defendants no.1 and 3 filed written statement at Exhibit-21 and resisted plaintiff’s claim. According to them, plaintiff has no locus standi to file the suit and the suit is not maintainable on the ground of non joinder of necessary parties. Defendants specifically controverted the contention raised by the plaintiff that he is entitled to secure rotation for a period of three months for performance of ‘seva’ of the God. 6 The trial Court, after considering rival contentions raised by the parties, was pleased to grant decree in favour of the plaintiff. The judgment and decree passed by the trial Court was subjected to challenge in Regular Civil Appeal No.103/2010 at the instance of defendants. The appeal came to be heard and disposed of by District Judge-1, Aurangabad, who was pleased to allow the {5} same and while setting aside the decree passed by the trial Court, the appellate Court remitted the matter back to the trial Court for re-trial with a further direction to frame an additional issue. 7 The only substantial question of law, that arises for consideration in the appeal is: Whether the first appellate Court was justified in remitting the matter back to the trial Court in exercise of powers conferred under Order 41 Rule 23 of the Code of Civil Procedure. 8 The only argument advanced by the Counsel appearing for original plaintiff is that there was no need for the first appellate Court to remit the matter back to the trial Court for consideration of the issue of non joinder of necessary parties, as none of the parties have made any request to the Court for extending opportunity to lead evidence. In these circumstances, it is urged by the appellant – original plaintiff that the first appellate Court should have taken up the matter for consideration and ought to have decided the objection in respect of non joinder of necessary parties raised by defendants. It is the contention of plaintiff that the other members of Shewale family are not necessary parties to the suit. Such an objection was raised by defendants before the trial Court, but the trial Court has turned down the objection and {6} decreed the suit presented by the plaintiff. 9 It is true that the trial Court has not framed a specific issue in respect of non joinder of necessary parties, however, the objection raised by defendants, in that regard, has been considered in paragraph 23 of the judgment. Para 23 of the judgment of trial Court reads thus: “It was argued by the Counsel for the defendant No.1 and 3 that all the members of the Shewale family have not been joined as parties and therefore, suit is not maintainable for non-joinder of necessary parties. However, I don’t think that because of not joining all the members of the Shewale family, suit is not maintainable. It is pertinent to note that the plaintiff has not filed the suit for deciding the period of Sewapali afresh, however, he has prayed for continuing his three months period of Sewapali and asked the declaration to that effect. The letter placed on record at Exh.55 suggests that it was the defendant No.1 and 3 who were refusing to hand over the charge of Sewapali to the plaintiff. As the defendant No.1 and 3 took the leading role among the Shewale families in disputing the period of Sewapali of the plaintiff by giving the letter dated 02.09.2005 to the defendant No.2, and as the Honourable Assistant Charity Commissioner directed to get resolved the said dispute by the Civil Court, the plaintiff approached to this Court to have the declaration in respect of his existing period of Sewapali and to restrain these defendants from causing obstruction to {7} render his services during his three months period of Sewapali. Therefore, submission of the Counsel for the defendant No.1 and 3 that the suit is bad for non-joinder of the necessary parties cannot be accepted.” 10 The first appellate Court found fault with the trial Court for not framing a specific issue in respect of non joinder of necessary parties and directed the trial Court to frame an issue and answer the same. It was contended by the defendants before the first appellate Court that the suit is not maintainable on the ground of non joinder of necessary parties and ought to have been dismissed. 11 At the hearing of this Appeal from Order, learned Counsel appearing for the appellant, on instructions, has made a statement that his client does not wish to present any application seeking amendment to the plaint for impleadment of members of Shewale family as party to the suit. Appellant – plaintiff has also made a statement that he does not wish to lead any evidence in respect of the issue of non joinder of necessary parties. Defendants also have not made any request either to the first appellate Court or this Court in respect of leading of evidence on the issue of non joinder of necessary parties. It was, therefore, not necessary for the first appellate Court to remit the matter back to the trial Court and the first appellate Court itself could have {8} considered the effect of non joinder of necessary parties and ought to have considered the objection raised by defendants in that regard. 12 It is needless to mention that for consideration of the objection raised by defendants in respect of non joinder of necessary parties, no fresh evidence needs to be recorded by the trial Court and thus, it was possible for the first appellate Court to deal with the objection at the appellate stage. It is also necessary to take into account that although the trial Court has not framed a specific issue in respect of non joinder of necessary parties, has, in fact, considered the objection raised by defendants in the judgment in paragraph 23. The necessity of joinder of parties and effect of non joinder is required to be taken into account by the first appellate Court. The first appellate Court has not dealt with the other issues involved in the matter and has considered the only objection raised by defendants as regards non joinder of necessary parties and decided the appeal. In this context, it is appropriate to refer to the judgment in the matter of Ashwinkumar K. Patel Vs. Upendra J. Patel & others, reported in 1999 (2) ALL MR 412, wherein it has been observed that it is the duty of the appellate Court to deal with all the questions involved in the matter while rendering decision at the appellate stage and record findings accordingly. It is only after the appellate Court records findings on all the issues raised at appellate stage, if the occasion arises and {9} only if the appellate Court is not satisfied as regards correctness of answers given to the issues, it would be open for the appellate Court to allow the appeal. The relevant observations in the judgment are quoted as below: “....The High Court should not ordinarily remand a case under Order 41, Rule 23 C.P.C. to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified.” 13 As mandated by the Apex Court in the reported judgment in the matter of Balkrishna Dattatraya Butte & others Vs. Dattatraya Shankar Mohite & others, reported in 1998 (2) ALL MR 740, the appellate Court shall avoid unnecessary remand of the matters when the issues/objections raised at the appellate stage can be considered by the appellate Court. In para 5 of the judgment, it is observed by the Apex Court, as below: “...... The order of remand is never passed as a matter of routine or for mere asking. Once the trial Court has examined the case on the basis {10} of the available evidence and has reached conclusion, unless a clear case for remand was made out, the Appellate Court ought not to have remanded the matter. An order of remand under Order 41 Rule 23A cannot be made without considering the merits of the findings recorded by the trial Court. Not only that the merits of the findings recorded by the trial Court are required to be seen but has to be reversed and set aside and if the appellate Court finds that retrial was necessary, a case for remand could be made out. Prior to the year 1976 even where amended provision of Order 41 Rule 23A CPC was not there it was consistently held by the Court that an order of remand can be made only if the finding of the lower court is reversed in appeal. The legal position is now clarified by amending Order 41 Rule 23A which empowers the Appellate Court to remand the matter where the decree is challenged in appeal having been passed in a suit otherwise on a preliminary point and the decree reversed in appeal and retrial is considered necessary. Obviously, therefore, whenever a remand is made under Order 41 Rule 23A the findings recorded by the trial Court have to be examined and reversed in appeal and then retrial, if considered necessary may be ordered. In the present case the Appellate Court has exercised its power of remand under Order 41 Rule 23A when prerequisite conditions for remand were not made out. 14 In the instant case, as recorded above, in order to consider the objection raised by the defendants as regards non joinder of necessary parties, as stated by both the parties before {11} this Court, there is no need to record evidence. In such situation, the objection raised by defendants can be conveniently dealt with by the first appellate Court and remand of the matter to the trial Court becomes unnecessary. 15 The Appeal from Order, therefore, deserves to be allowed and same is accordingly allowed. The judgment and decree passed by District Judge-1, Aurangabad on 30.11.2010 in Regular Civil Appeal No.103/2010, is quashed and set aside and the first appellate Court is directed to consider all the issues / points raised in the appeal and render decision afresh in accordance with the provisions of law, after extending an opportunity of hearing to all the parties concerned. In the facts and circumstances of this case, there shall be no order as to costs. Pending Civil Application, if any, stands disposed of. R.M.BORDE JUDGE adb/ao111