1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Appeal against Order No.40 of 2011 (Ravindra Atmaram Patil v. Sau. Kavita Ravindra Patil) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri A.V. Bhide, Advocate for Appellant. Coram : R.K. Deshpande, J. Dated : 28 th March, 2011 1. The appellant-husband had filed a petition for conjugal rights under Section 9 of the Hindu Marriage Act, 1955 and that was decreed by the Trial Court, against which the respondent-wife preferred Regular Civil Appeal No.25 of 2007. During the pendency of this appeal, an application was filed by the respondent-wife for amendment of the written statement, raising a plea that the appellant-husband has re-married. Taking into consideration this fact, the Appellate Court has allowed the application for amendment and since a dispute was raised by the appellant-husband about his re-marriage, as alleged by the respondent-wife, the matter was remanded back to the Trial Court with a direction to re-admit the suit under its original number, to permit the respondent-wife to amendment the written statement, to further permit the parties to lead additional evidence, and to decide the petition afresh in accordance with law. This is the subject-matter of challenge in this appeal filed by the 2 appellant-husband. 2. Shri Bhide, the learned counsel appearing for the appellant-husband, has relied upon the provision of Order 41, Rule 25 of the Civil Procedure Code to urge that the Appellate Court could not have set aside the decree passed by the Trial Court, and at the most it could have framed an additional issue and remanded the matter back to the Trial Court to record its findings by keeping the appeal pending. He further submits that the Appellate Court has not gone into the merits of the findings recorded by the Trial Court while passing the decree for restitution of conjugal rights, and hence, the decree could not have been set aside. He has further relied upon the provision of Order 41, Rule 27 of the Civil Procedure Code dealing with the production of additional evidence in the Appellate Court. 3. Shri Bhide, the learned counsel, does not dispute that if the fact of re-marriage by the appellant-husband is established, then in that event it shall have bearing on the question of passing of the decree by the Trial Court for restitution of conjugal rights. The only question is, therefore, whether the appellant-husband has re-married during the pendency of the appeal. The provision of Order 41, Rule 25 of the Code of Civil Procedure, relied upon by the learned counsel for the appellant-husband, is reproduced below : “Rule 25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.--Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the 3 Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time.” Perusal of the aforesaid provision indicates that it proceeds on the footing that the Trial Court has omitted to frame an issue, which it should have framed, or that it has failed to try any issue, which has been framed, or that it has failed to determine any question of fact, which has arisen before it. 4. This is not the case here. The Trial Court has neither omitted to frame any issue, or to try any issue, or to determine any question of fact. It is on the basis of the subsequent events brought on record in the Appellate Court, the Appellate Court has remanded the matter back to the Trial Court. It was, therefore, not necessary for the Appellate Court to simply remand the matter back to the Trial Court for recording its findings on the issue to be framed. As pointed out earlier, if the fact of re-marriage of the appellant-husband during the pendency of the appeal is established, it shall have material bearing on the question of passing of the decree for restitution of conjugal 4 rights. In view of the order passed by the Appellate Court, the Trial Court is bound to frame an issue and permit the parties to lead evidence in respect thereof. Hence, no fault can be found with the order of the Appellate Court in setting aside the decree passed by the Trial Court for restitution of conjugal rights. 5. The appeal is, therefore, dismissed. 6. The parties are at liberty to amend their pleadings before the Trial Court. Judge pdl