1 Chunni Lal Vs. Ganpat Lal (S.B.CIVIL MISC. APPEAL NO.378/98 Dated:- 3.8.10. HON'BLE MR.JUSTICE SANGEET LODHA Mr. M.S.Purohit,for the appellant. Mr. J.L.Purohit,f or the respondents. 1. This appeal arises out of order dated 22.5.98 passed by the Additional District Judge No.1, Bikaner, whereby the judgment and decree dated 6.8.96 passed by the Civil Judge (J.D.), Bikaner in Civil Suit No.370/89, has been set aside and the matter stands remanded to the trial court for disposal afresh after taking the evidence in terms of the directions issued. 2. The respondent (plaintiff) and the appellant (defendant) are brothers. Smt. Chhagani Devi, mother of the plaintiff bequeathed disputed property in favour of the plaintiff by a registered Will dated 9.4.82. After the death of Smt. Chhagani Devi, the plaintiff became the owner of the disputed property. The defendant asked the plaintiff to give him a room in the disputed premises with the assurance that same shall be vacated as and when asked for. However, later the defendant refused to vacate the room and therefore, the plaintiff filed the suit for eviction against him. 3. The suit was contested by the defendant by filing written 2 statement thereto. The trial court framed the issues and parties led their evidence. After considering the rival submissions and the material on record, the trial court arrived at the finding that the plaintiff has not been able to prove the Will dated 9.4.82 said to have been executed by his mother in his favour and therefore, he is not entitled for the relief prayed for. Accordingly, the suit was dismissed by judgment and decree dated 6.8.96. 4. Aggrieved thereby, the plaintiff preferred an appeal before the appellate court. After consideration of the rival submissions, the appellate court opined that for complete and effectual adjudication of the dispute between the parties, in the interest of justice, the matter needs to be remanded to the trial court for disposal afresh after taking further evidence in respect of Will dated 9.4.82 alleged to have been executed by the plaintiff's mother Smt. Chhagani Devi in his favour and yet another registered Will dated 20.12.1984 executed by Late Shri Khemchand(father of the plaintiff and the defendant), whereby a residential Bada was bequeathed in favour of the defendant. The appellate court has issued certain directions regarding the evidence to be taken in respect of the both the Will referred supra. 5. It is contended by the learned counsel for the appellant that the Court below has seriously erred in remanding the matter for disposal afresh to the trial court without recording the finding 3 on the issues adjudicated by the trial court. Learned counsel submitted that the matter cannot be remanded for retrial just to fill up the lacuna left out by the parties in leading the evidence. Learned counsel relying upon the provisions of Order XLI Rule 23 A( as quotted in the appeal) submitted that the matter cannot be remanded for retrial on fresh evidence excepting the rare circumstances where there has been no proper or regular trial and prejudice has been caused. Learned counsel submitted that the appellate court has seriously erred in relying upon a document i.e. Will dated 20.12.84 which is not subject matter of the suit. Learned counsel further contended that the plaintiff has to prove his case by producing cogent evidence and if he failed to prove his case, then the matter cannot be remanded to fill up the lacuna and permit the plaintiff to lead further evidence. Learned counsel submitted that the appellate court has remanded the matter on the basis of surmises and conjectures and therefore, the impugned judgment and decree cannot be sustained and deserves to be set aside. 6. On the other hand, learned counsel appearing for the respondent submitted that the power of the appellate court to remand is not inhibited by the acts and omission of the parties and if it is considered essential for the right decision of the case, the matter can always be remanded by the appellate court to the trial court for re-trial. Learned counsel submitted that the 4 appellate court has given cogent reasons for remanding the matter and therefore, the order impugned passed by the Court below after arriving at a categoric conclusion that for just decision of the dispute between the parties, it is necessary to take additional evidence cannot be faulted with. In support of his contentions, learned counsel has relied upon a decision of the Hon'ble Supreme Court in “REMCO Inds. Workers House Bldg. Coop. Socy. vs. Lakshmeesha M. and others” AIR 2003 SC, 3167. 7. I have considered the rival submissions and perused the material on record. 8. Indisputably, the disputed property is alleged to have been bequeathed in favour of the plaintiff by his mother by way of registered Will dated 9.4.82. It is also not in dispute that the Will dated 20.12.1984 alleged to have been executed by the father of the plaintiff in favour of the defendant makes reference of the Will executed by Smt. Chhagni Devi, the mother of plaintiff and defendant, in favour of the plaintiff in respect of the disputed property. The Will dated 9.4.82 is not found to be duly proved by the trial court on the ground that the attesting witness of the Will is not produced in evidence and the thumb impression on the Will has also not been proved by producing the expert evidence and therefore, on the strength of the said Will, the plaintiff cannot claim the ownership of the disputed property. 5 9. The appellate court opined that to prove the signature of the Poonam Chand Chhajer, the attesting witness, his legal heirs may be produced in evidence and that apart the signature of the plaintiff's father Khemchand and Shri Poonam Chand as attesting witnesses can also be proved by comparison of the signatures or by producing the expert evidence. The Court observed that the signature of Shri Khemchand available on Gift Deed dated 24.9.69 and the thumb impression of Smt. Chhagani available on Will dated 9.4.82 can also be proved by comparison of the admitted signature with that of the disputed signature by producing expert evidence. Accordingly, the appeal has been allowed by the appellate Court and the matter has been remanded to the trial court to decide it afresh after taking fresh evidence as directed. 10. In the first instance, it is to be noticed that the provisions of Order XLI Rule 23A as quoted by the appellant in the appeal and referred to during the course of arguments which do not exist in the statute book, reads as under: “Retrial on fresh evidence:- There cannot be an order of remand for retrial on fresh evidence excepting in rare circumstances where there has been no proper or regular trial and prejudice has been caused.” As a matter of fact, the Rule 23 A has been inserted in Order XLI of CPC, by CPC Amendment Act, 1976 (Act of 104 of 1976) w.e.f. 1.2.77, which reads as under:- 6 “23A. 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.” 11. Indisputably, Rule 23A of Order XLI introduced by CPC Amendment Act, 1976 confers unfettered discretion upon the appellate court to remand the matter for re-trial if it comes to the conclusion that in the interest of justice, the decree should be reversed or set aside. It is true that the power of remand in terms of the provisions of Rule 23A cannot be exercised as a matter of course but it can always be exercised if the decision results in miscarriage of justice. 12. In terms of the provisions of Section 23A, the order of remand can be plain and simple order contemplating re-trial of the suit or it may be an order directing the trial court to proceed in the suit in a specified manner. In the former category the trial court can allow production of further evidence while in the later category it has to act as per the specific directions of the appellate court (vide Chhotelal Vs. Kalyan Prasad, AIR 1987 Rajasthan, 75). 13. A perusal of the impugned judgment makes it abundantly clear that the appellate court after examination of the material on record arrived at a categorical finding that the issues with regard to Will of the disputed property have not been properly 7 dealt with and the further evidence as directed needs to be taken for complete, effectual and just decision of the lis between the parties. Having considered the facts and in the circumstances of the case, this court is of the considered opinion that the order of remand passed by the trial court does not suffer from any infirmity, illegality or irregularity warranting interference by this Court in its appellate jurisdiction. 14. In the result, the appeal fails and it is hereby dismissed. No order as to costs. (SANGEET LODHA),J. rp