( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 23 OF 2008 WITH CIVIL APPLICATION NO. 2803 OF 2008 AND APPEAL FROM ORDER NO. 24 OF 2008 WITH CIVIL APPLICATION NO. 2804 of 2008 Shivaji s/o. Motiram Ingale .. Appellant Versus Prakash s/o. Neminath Jain .. Respondent Shri R.S. Deshmukh, Advocate for the appellant. Shri A.P. Bhandari h/f. Adv. Shri S.V. Gangapurwala, Advocate for sole respondent. CORAM : P.R. BORKAR,J. DATED : 07.09.2009 P.C. :- 1. These two Appeals From Orders are filed by the plaintiff in Regular Civil Suit No. 24 of 1998 and defendant in Regular Civil Suit No. 86 of 1999. Both the suits were for perpetual injunction simplicitor against each other. The ( 2 ) Trial Court decreed the suit filed by the present appellant and dismissed the suit filed by the respondent. The present respondent filed two appeals being aggrieved by said decrees. The District Court partly allowed the appeals and remanded the suits. Hence, the appellant filed these appeals. 2. Briefly stated, it is case of both appellant and respondent that they purchased portion of Gat No.268, situated at village Warood (Bk), Tal. Jafrabad, Dist. Jalna. The plot was purchased by present appellant on 25.06.1996 and it is admeasuring 6 R, whereas the respondent purchased his plot on 28.10.1997. According to the respondent his predecessor in title had purchased said plot on 29.02.1996. In Regular Civil Suit No. 24 of 1998 present appellant was plaintiff. The respondent filed application for appointment of Court Commissioner, stating that in between plots of the parties, there is a road which is of “V” shape and it is road between Warood and Konad; whereas it is case of present respondent that plots of the parties are adjoining to each other and there is no road. So, it is say of the appellant that this was an attempt to encroach upon the road in between two plots and also to make encroachment over the plot of the ( 3 ) appellant and so Court Commissioner may be appointed. 3. The District Court after hearing both sides has come to a conclusion that both the suits need to be remanded. He passed order of remand on three points. Firstly that while accepting the affidavits of parties and the witnesses on record, necessary procedure for verification of the affidavit by the Court regarding the contents and signature was not followed. Secondly, the application for appointment of Court Commissioner, which is Exh.48, in Regular Civil Suit No. 24 of 1998 ought to have been allowed and there was necessity of reconsideration of appointment of Court Commissioner and thirdly the Court also came to a conclusion that the issue framed in Regular Civil Suit No. 86 of 1999 “Whether the defendant proves that sale-deed No. 1334 of 1997 dated 28.10.1997 is illegal, null and void?” was framed without there being any counter claim by the present appellant for declaring sale-deed in favour of the respondent as illegal, null and void and without giving opportunity to the plaintiff to file his say or additional say, said issue was decided. ( 4 ) 4. The learned advocate Shri Padalkar relying on the decision of Single Bench of this Court in Dilip s/o. Madanlal Jain V/s. Smt. Pritam Kaur wd/o. Late Dr. N.S. Madan, 2008 (4) ALL MR 575, stated that where affidavits in lieu of examination-in-chief are not objected and witnesses have entered into witness box and faced cross-examination, the deficiency of formal confirmation of affidavit to be one of the witnesses’ own, becomes a deficiency of ‘form’ than of ‘content’. Here I may refer to paras 22 and 23 of the case of Dilip s/o. Madanlal Jain (Supra). 5. In the case of F.D.C. Ltd., V/s. Federation of Medical Representatives Association India (FMRAI) and Ors., AIR 2003 BOMBAY 371, this Court in para 8 laid down the law as follows :- “8. In other words, in the appealable cases though the examination-in-chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be ordered to form part of the evidence unless the deponent thereof enters the witness-box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature and this statement being made on oath to be recorded by following the procedure prescribed under Rule 5. .............” ( 5 ) . Said position of law is specifically confirmed as correct position of law by the Supreme Court in paras 30 and 31 of the case of Ameer Trading Corporation Ltd., V/s. Shapoorji Data Processing Ltd., AIR 2004 S.C.355. Whether difference is only of ‘contents’ or ‘form’, depends upon facts of each case. One thing is very clear that the directions given by this Court in the case of F.D.C.Ltd. (Supra), as confirmed by the Supreme Court are necessary to be followed by the Trial Court without fail. Because, that is the opportunity for the parties or the witnesses to go through their affidavits which perhaps may have been drafted by their advocates. That is the stage where the witnesses can dis-own any portion of their affidavit or explain any statement, if it is not fully explained. This can be done before the witnesses are subjected to cross-examination. The witnesses have right to know what is filed in the Court as their affidavits in lieu of examination-in-chief. In this case the District Court has come to a conclusion that non- compliance was material. 6. Secondly, the learned District Judge also raised ( 6 ) question whether the issued framed in Regular Civil Suit No. 86 of 1999 regarding validity and legality of the sale-deed in favour of the defendant could be raised without challenging the sale-deed by way of declaration to that effect. In my opinion, the Court has rightly considered the case of Samrat Furniture, Nagpur and ors. V/s. Bhaurao Natthuji Mankar, 2001 (3) Mh.L.J. 456. It is one thing to assert that on the basis of particular sale-deed one has become owner of particular plot; and another thing to say that the sale-deed in favour of the defendant is null and void. In my opinion, the District Court has not committed any error in holding that such issue was not necessary in absence of any pleading and payment of Court fees therefor. 7. So far as third point is concerned, when parties come to the Court with a case that there is road in between plots of the plaintiff and defendant, which is a public road, Court Commissioner ought to have been sent to ascertain the exact position. There was no reason why application Exh.48 filed in Regular Civil Suit No. 24 of 1998 should have been dismissed. In my opinion, no error is committed by the District Court in setting aside decrees and remanding the ( 7 ) suits. 8. The learned advocate cited case of Municipal Corporation, Hyderabad V/s. Sunder Singh, (2008) 8 S.C.C.485. It is observed that Court should be loathe to exercise its power in terms of Order 41 Rule 23 of the C.P.C. and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper findings of its own. The appellate court cannot shirk its duties. Moreover, it is also observed that scope of Order 41 Rule 23 is extremely limited. So, in the facts and circumstances, it was held that fresh trial was not necessary and order of remand was reversed. Bearing in mind the ratio, in my opinion, reasons given for remand are sufficient. A Court Commissioner ought to have been appointed so as to ascertain boundaries of the plots purchased by the parties and to decide the question of controversy. In the facts and circumstances of the case, these Appeals From Orders are liable to be dismissed. ( 8 ) 9. In the result, the Appeal From Order are dismissed. Parties to bear their own costs. 10. In view of disposal of these Appeals From Order, Civil Application Nos. 2803 and 2804 of 2008 do not survive. The Civil Applications are disposed of as such. [P.R. BORKAR,J.] snk/2009/SEP09/ao23.08