^\ IN THE HIGH COURT OF JUDICATURE. AT BILASPUR. (C.G.l M. A. No.- -^-y—-— 2010 ^ Appellants: ^l. Lakhan Lal Gupta, S/o Babulal Gupta, aged ftefendants: about 60 years. Sf Manish Gupta, S/o Lakhanlal Gupta, aged about 45 years. Manoj Kumar Gupta, S/o Lakhanlal Gupta, aged about 40 years. All R/o Ward Nayaganj, Bhatapara, Tah. Bhatapara, Dist. Raipur, (C.G.) . ^/D ^ //o R...R. HS......L Pressnt^ »,Siwl^1/.^^' Versus D^d......,,^^<^.^°/..- Respondent: ^jinder Kaur, Wd/o Late Shri Pratap Singh Sakhuja, / pla'"tiff: aged about 55 years, R/o Balbhadra Ward Bhatapara, Tah. Bhatapara, Dist. Raipur, (C.G.) Appeal under Order 43 Rule 1 (ul of the Code of Civil Procedure c^ HJGH COURT OF CHHArTiSGARH AT BILASPUR ^ ^s' APPELLANTS/ Defendants RESPONDENT/ Plaintiff Misc. Appeai No. 44 of 2010 Lakhan Lal Gupta Sothers. VERSUS Ajinder Kaur, Wd/o Late Shri Pratap Singh Sakhuja (MiSC. APPEAL UNDER ORDER 43 RULE 1 (U) OF CPC. 1908) fSB: Hon'ble IVIr. N.K. Aaarwal. J.) Present Shri B.P. Gupta, Advocate for appellants. Shri P.P. Sahu, counsel for respondent. ORALORDER (Passedon 09.09.2011) 1. instant MIsc. Appeai is preferred by the defendants against the order dated 27.3.2010 passed by Additional District Judge, Bhatapara, District Raipur Jn Civi! Appeal No.12-A/2009, v^hereby the appijcation preferred bythe plaintiffs under Order 41 Rule 27 of CPC was allowed and the matter vvas remitted back to the trial court for its declsion afresh. 2. Brief facts of the case are : respondent/plaintiff instituted a suit for deciaration of title, permanent injunction and possession. The trial court, on appreciation of evidence !ed, materiai piaced and submlssions made by the partles, djsmi'ssed the suit. There-against appeai vv'as preferred by the piaintiff under Section 96 of CPC before the Additionai District Judge, Bhatapara, District Raipur, along with appllcation under Order 41 Ruie 27 of CPC for admission of addjtiona! evidence. The first appeiiate court aljowed the application holding that addjtjonal evidence is necessary for just decision of the case and remitted back the matter for deciding the suit afresh after affordingopportunity of adducing additionai evjdence to both the parties and after framjng additional i'ssue, in case required. 3. Shri B.P. Gupta, learned counsel appearing for the appellants wouid submit : the first appellate court went wrong in ^ e- ^ 4- ^ aliowing plaintiffs appiication fiied under Order 41 Ruie 27 of CPC and consequently remanding the matter to the triai court. 4. On the other hand, Shri P.P. Sahu, learned counsei appearing for respondents supported the judgment and decree jmpugned and vvoufd submlt, jn the facts and drcumstances of the case. the first appellate court has rightly allowed the plaintiffs application for admission of additiona! evidence and was also correct in remandjng the matter to the trial court. 5. ! have heard counsel appearing for the parties and perused the judgment and decree impugned as wel! as records of both the courts below. 5. The first appellate court, looking to the relevancy of the documents filed by the appeilants along with application under Order 41 Rute 27 of CPC, has rightly allowed the same. However, on the face, has committed an error of law in remanding the matter for deciding the suit afresh after permitting parties to adduce evidence and after framing additionaj issue, ifso required. 7. As per procedure prescribed in Order 41 Ruie 28 of CPC, wherever additionai evidence is aiiowed to be produced, the appellate court may either take such evidence or direct the court from whose decree the appea! is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appeilate Court. 8. As per Order 41 Ruie 29 of CPC, where additiona! evidence Is directed or aliowed to be taken, the appellate court shall spedfy the points fo which the evidence is to be confined and record on its proceedings the points so specified. 9. For aforementioned purpose, in my opinion, the first appeliate court could not have directed the triaj court to dlspose of the suit after taking evidence. Such an order of remand could be on!y in terms of Order.41 Rule 23, Order 41 Rule 23-A or Order 41 Ru!e 25 of CPC. None of the said provisions have any appijcation in the Instant case. 10. The Supreme Court in case of Shanti Devi v. Daropti Devi and others1 has held in para 13 of itsjudgment as under: "13. But the same by itseif could not be a ground for remjtting the entire suit to the learned Trial Judge upon setting aside the decree of the iearned Tria! Court. The power of remand vests in the Appellate Court either in terms of Order XLI Rules 23 &23A or XL! Rule 25 of the Code of Civi! Procedure. tssue No. 4 was held to have been wrongiy framed. Onus of proof was also wrongly placed and only in that view of the matter the High Court thought it fit to remit it to the learned Trial Judge permjtting the parties to adduce fresh evidence. tt, therefore, required the learned TriaJ Judge to determine a question of fact, which according to it was essentia!, upon reframing the issue." 11. For the reasons mentioned hereinabove, the order passed by the first appeliate court is modified and the matter is referred to the trial court in terms of Order 41 Rule 28 of CPC with the followingdirections: i. The trial Court may frame issue necessary due to admission of additionai evidence by first appeliate court and after recording evidence necessary for the above purpose i.e. necessary due to admission of above" documents in the evidence, shali transmit the records to the first appeiiate court wjth a copy of its report annexed thereto. ii. Such an exercise by the triai court must be completed within a period of eight weeks from the date of communlcation of this order. jjj. The parties are directed to appear before the trial court on 30.1 1.2011. No order as to costs. Sd/- N.K. Agrawal Judge ' 2.006 (!3) SCC 775