: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.40 OF 2007 ALONGWITH CIVIL APPLICATION NO.62 OF 2007 Kamalabai Tatya Bhande (Patil) .. Appellant V/s. Sawanta Tatya Bhande (Patil) & Ors. .. Respondents Mr. T.S. Ingale for the Appellant. Mr. A.M. Kulkarni for Respondent No.1. CORAM : SMT. NISHITA MHATRE, J. DATED : 2 ND FEBRUARY, 2010. P.C.: 1. The Appeal from Order has been filed against the Judgment and Order dated 30th September, 2006, passed by the Ad-Hoc District Judge-II, Sangli in Regular Civil Appeal No.115 of 2005. By this order, the Appeal filed by respondent No.1 has been allowed and the judgment and decree of the trial Court has been set aside. The Appellate court has remanded the Suit to the trial Court for hearing it afresh. Parties have been permitted to adduce appropriate evidence in support of their respective claims. : 2 : 2. Being aggrieved by this order passed by the Appellate Court, the appellant has preferred the present Appeal from Order. Notice was issued on 29th January, 2007 and the judgment and order of the Appellate Court was stayed with a direction to the parties to maintain status-quo regarding the suit properties. Thereafter, on 4th May, 2007, this Court has framed the substantial questions of law which arise in this Appeal in view of the law laid down by the Apex Court in the case of Narayanana v/s. Kumaran, reported in (2004) 4 SCC 26. This Appeal has been preferred under Clause (u) of Rule 1 of Order LXIII of the Code of Civil Procedure, 1908 and hence is maintainable only on substantial questions of law. These questions are as follows : (i). Whether the learned Ad-hoc District Judge was justified in passing the order of remand inasmuch as he has not recorded any finding that the parties were prevented from leading evidence on any issue? (ii).Whether the order of remand was totally unwarranted inasmuch as no grievance was made before the Appellate Court regarding the non-framing of any material : 3 : issue and consequent prejudice to any of the parties? (iii).Whether the Appellate Court committed an error by passing an order of remand though the Appellate Court itself could have decided all questions arising in the Appeal? 3. The Suit has been filed as a partition suit in respect of the properties owned by Tatya Ishwara Bhande (Patil). The appellant claims to be Tatya’s wife. Respondent No.1 is Tatya’s son. His mother was Mangalabai who also claimed to be the wife of Tatya. The appellant contends that Mangalabai and Tatya had an illicit relationship and were, in fact, never married. Tatya expired on 11th May, 1992 leaving behind as his heirs, his father Ishwara and the appellant, besides respondent No.1 who was his illegitimate son. 4. The plaintiff, i.e. the appellant herein, filed Regular Civil Suit No.94 of 1992 against Ishwara for an injunction not to alienate the suit properties. That Suit was withdrawn on 16th September, 1995 on the death of Ishwara. In 1995, : 4 : Mangalabai filed a Suit being Regular Civil Suit No.111 of 1995 on behalf of her son Sawanta, respondent No.1 herein, for a perpetual injunction against the appellant and others from obstructing his possession of the suit properties. The appellant then in 1997 filed the present Suit being Regular Civil Suit No.32 of 1997 for partition and separate possession by metes and bounds. This Suit was filed against Sawanta and several others. The plaintiff, i.e. the appellant herein, contended that the suit properties were ancestral properties of Tatya who had expired on 11th May, 1992. The appellant, therefore, claimed a 3/4th share in the suit property. Sawanta filed his written statement denying the appellant’s-plaintiff’s marriage with Tatya. He also denied that he was born from the illicit relations between his mother, Mangalabai and Tatya and contended that Mangalabai was the wife of Tatya. It was also contended that Ishwara, being the sole surviver and co-parcener of Tatya, had executed a Will in favour of defendant No.1- Sawanta on 10th November, 1993. : 5 : 5. The Suit was decreed on 21st April, 2005. It was held that the appellant-plaintiff was entitled to 3/4th of the share in the suit properties, whereas respondent No.1-defendant No.1 was entitled to 1/4th share in the suit properties. Being aggrieved by the order of the trial Court, defendant No.1 preferred a Regular Civil Appeal No.115 of 2005 before the District Court at Sangli. The Appellate Court has set aside the judgment and order of the trial Court and remanded the matter for a fresh hearing. Hence the present Appeal from Order. 6. It is submitted by Mr. Ingale appearing for the appellant that the Appellate Court has remanded the matter to the trial Court without there being any cogent reasons for doing so. He submits that neither party had contended that they were prevented from leading evidence on any issue. He further submits there was no grievance made before the Appellate Court that proper issues had not been framed and as a consequence either of the parties had been prejudiced. The learned Advocate further submits that there was sufficient evidence on : 6 : record for the trial Court to decide all the questions which arose in the Appeal without having to remand the matter. According to the learned Advocate, the Appellate Court could have, on the basis of the evidence on record, drawn its own conclusions with respect to the issues which arose. He urges that the order of remand was wholly unnecessary since the Appellate Court could have drawn its own conclusions and either reversed or confirmed the findings of the trial Court. The learned Advocate buttresses these submissions by the judgments of the Supreme Court in the case of Kattukandi Edathil Krishnan & Anr. v/s. Kattukandi Edathil Valsan & Ors., reported in (2006) 9 SCC 166, and in the case of Municipal Corporation, Hyderabad v/s. Sunder Singh, reported in (2008) 8 SCC 485. 7. Mr. Kulkarni appearing for respondent No.1 submits that prior to the stay being granted by this Court, the appellant had already filed her additional affidavit in evidence before the trial Court after the order of remand. He submits that : 7 : since the appellant had accepted the order of the Appellate Court by filing the additional affidavit in evidence, there is no need to entertain the present Appeal from Order. This submission of Mr. Kulkarni is untenable. It appears that the affidavit was filed after the present Appeal from Order was filed on 15th January, 2007. This Court, by its order dated 29th January, 2007, stayed the proceedings. It cannot, therefore, be said that the present Appeal need not be considered. In fact, on 4th May, 2007, when the substantial questions of law were framed, this contention was not raised by the respondents although they were represented by an Advocate. 8. On merits, Mr. Kulkarni submits that the Appellate Court has committed no error by concluding that a case for remand was made out. He submits that the observations of the Appellate Court indicate that the trial Court had arrived at a particular conclusion with respect to the Will which was produced, without it being proved. He points out that only a certified copy of the Will : 8 : was produced, as reflected from the Appellate Court’s order and, therefore, the Appellate Court had directed, while remanding the matter, that the Will of the Ishwara would have to be proved. He further submits that the property could not have been partitioned in the ratio of 3/4th to the plaintiff and 1/4th to defendant No.1 if the defendant No.1’s contention regarding the Will was accepted. He further submits that the trial Court had committed an error by partitioning the suit property as aforesaid without the Will being proved. 9. The submissions of the learned Advocate for the respondent No.1 in support of the impugned judgment are unsustainable. The Appellate Court has recorded a finding that the Will had not been proved. It has observed that “even the lower Court while delivering the judgment, considered the Will as if Will is proved.” According to the Appellate Court, this observation made by the lower Court is “not only irrelevant but also ridiculous.” These observations of the Appellate Court, in my view, : 9 : are without merit. Besides, the fact that the Appellate Court has used language which is extremely harsh while considering the trial Court’s order, the Appellate Court has not considered the evidence on record to either confirm the order passed by the trial Court or to reverse its finding. Instead, the Appellate Court in this case has abdicated the powers vested in it as a Court of Appeal by remanding the matter. The Appellate Court has done so despite the fact that all the issues framed had been answered by the trial Court. If the Appellate Court was of the opinion that the plaintiff was not able to prove her case, it could have drawn its own conclusions on the basis of the evidence on record and if necessary reversed the findings of the trial Court. 10. The Supreme Court in the case of Kattukandi Edathil Krishnan & Anr. v/s. Kattukandi Edathil Valsan & Ors., has observed that the power of the Appellate Court to remand the matter to the trial Court to take additional evidence is limited. It was observed that the Appellate Court must come to : 10 : the conclusion that there was no proof on a particular issue and, therefore, it was necessary to remand the matter to the trial Court to enable the parties to raise appropriate pleas and to adduce additional evidence in the matter. The Apex Court observed that the Appellate Court must consider whatever evidence was on record for the purpose of disposal of the Appeal and either confirm or reverse the order of the trial Court after appreciating such an evidence. In the present case the Appellate Court has erred in remanding the matter to the trial Court when there was sufficient evidence on record for it to form its own opinion. 11. In the case of Municipal Corporation, Hyderabad v/s. Sunder Singh, the Apex Court has observed that before taking recourse to the provision for remand under Order 41 Rule 23 of the Code of Civil Procedure, an order of remand cannot be passed on the ipse dixi of the Court. The Appellate Court must arrive at a finding that a retrial was necessary as the decree was liable to be reversed. In the present case, these factors have not been : 11 : taken into account by the Appellate Court while remanding the matter to the trial Court. The order of remand has been passed by the Appellate Court exercising its powers under Order 41 Rule 23A. However, the Appellate Court has the same powers as it has under Order 41 Rule 23 and must therefore exercise them within the aforesaid parameters enunciated by the Supreme Court. It is trite that the power to remand must not be exercised rashly and without sufficient cause. 12. In my view, therefore, the learned Ad-Hoc District Judge, Sangli, was not justified in passing the order of remand as there was no finding recorded that the parties were prevented from leading evidence on any issue. The order of remand was thus totally unjustified and unwarranted as no grievance has been made by either party before the Appellate Court that material issues had not been framed and as a consequence the parties had been prejudiced. The Appellate Court has thus committed a grave error by passing an order of remand instead of either confirming or reversing the findings of : 12 : the trial Court. The Appellate Court could have itself decided all the questions which arose in the Appeal. There was sufficient evidence on record in respect of all the issues which had been framed for the Appellate Court to draw its own conclusions. The order of remand is completely unjustified as there was no finding that a retrial was necessary. Besides, the impugned order would only protract the litigation between the parties. 13. The order of the Appellate Court directing the remand is set aside. The Appeal is remanded to the Appellate Court to be decided afresh. The Appellate Court is expected to either confirm or reverse the findings of the trial Court on the basis of the evidence led by the parties before the trial Court. 14. Accordingly, the Appeal from Order is allowed. 15. The Appeal shall be heard and disposed of within three months from today. The parties shall appear before the Appellate Court on 22nd February, 2010 for directions. : 13 : 16. On the application made by the learned Advocate for respondent No.1, this order is stayed for a period of eight weeks from today. However, the proceedings before the trial Court, on remand, will also be stayed during this period. 17. In view of the above, Civil Application No.62 of 2007 pending in the Appeal from Order does not survive and the same is dismissed as infrucutous. .......