IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.95 of 2009 1. DR. ARUNA SINHA, WIFEOF SHRI GANGADHAR PRASAD SINHA 2. PUSHPA SINHA, WIFE OF DR. PRADEEP KUMAR 3. MADHURI SINHA, WIFE OF NAGENDER NARAYAN SINHA 4. PUNAM CHANDRA, WIFE OF SHRI PRAKASH CHANDRA ALL RESIDENTS OF MOHALLA – TILKAMANJHI, POLICE STATION – KOTWALI, DISTT. BHAGALPUR. ------- PLAINTIFFS – RESPONDENT 1ST PARTY ------- APPELLANTS. Versus 1. DINESH CHANDRA DAS, SON OF LATE RAM SURAT DAS, RESIDENT OF VILLAGE MAHADA, POLICE STATION – RAJOUN, DISTRICT – BANKA, PRESENTLY AT – MOHALLA – ALIGANJ, WARD NO. 3, POLICE STATION – BANKA, DISTT. BANKA. ------DEFENDANT 2ND PARTY – APPELLANT ---- RESPONDNT 1ST PARTY 2. THE STATE OF BIHAR, THROUGH THE COLLECTOR, BANKA. 3. THE MEDICAL OFFICR INCHARGE (PRABHARI CHIKITSA PADADHIKARI), STATE DISPENSARY, RAJOUN ASPATAL, RAJOUN, POLICE STATION – RAJOUN, DISTT. BANKA. 4. ANCHAL ADHIKARI, RAJOUN, POLICE STATION – RAJOUN, DISTT. BANKA. ----- DEFENDANT 1ST PARTY – RESPONDENT 2ND PARTY. ------ RESPONDENTS 2ND PARTY. ----------- 6. 28.02.2011 Heard the parties. The Appellants are aggrieved with the part of the order dated 22.11.2008 passed in Title Appeal No. 118 of 1997 by the Additional District Judge, (Fast Track Court IV), Banka, by which he has set aside the decree dated 18.11.1997 passed by the Sub-Judge IV, Banka, in Title Suit No. 47 of 1987 and remanded the matter for deciding the suit afresh after holding that framing of two additional issues were necessary in the suit. The learned counsel for the Appellants submits that under Order 41 Rule 23, no doubt, the Appellate Court has powers to remand the matter, but, there is a sort of limitation imposed by introduction of 2 Rule 23-A whereby the Appellate Court is itself expected to conduct the retrial if it considers it fit. The further submission is that under Rule 25, the Appellate Court is expected to remand the matter after framing of the issues to record additional evidence which the Appellate Court has not done and, therefore, has committed an illegality which requires to be reversed. On the other hand, the learned counsel for the Respondents argues that the Appellate Court has already indicated the issues that were required to be framed by the Trial Court and even if at the end of the order, the Appellate Court has mentioned that the Judgment is set aside, it is ineffective in view of the earlier discussion. On considering the rival submissions and various decisions on this point whereby this Court has repeatedly held that remand of suit should be resorted only under exceptional circumstances and the Appellate Court should strive to decide the suit itself by framing additional issues if it thinks fit, the order dated 22.11.2008 passed in T.A. No. 118 of 1997 by the Additional District Judge (Fast Track Court IV), Banka, is set aside with the direction to the Appellate Curt to frame the two additional issues if it requires and decide the matter itself without prolonging the Appeal any further. With these observations, the Appeal is allowed. S.Ali ( Anjana Prakash, J.)