IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.191 of 1990 Smt. Gayatri Devi, W/O Nathuni Yadav, Daughter of Late Kishun Yadav, Resident of Mohalla Sherpur, Police Station Bihar Sharif, District – Nalanda. ………. Plaintiff … Respondent …… Appellant. Versus Raj Kumar Prasad, Son of Shri Rameshwar Yadav, Resident of Mohalla Sherpur, Police Bihar Shrif, District – Nalanda. ………. Defendant ….. Appellant ….. Respondent. ----------- 13/ 09.08.2010 Heard learned counsel for both the parties. This miscellaneous appeal is directed against the judgment and order dated 22nd September, 1990 passed by the 7th Additional District Judge, Nalanda in Title Appeal No. 73 of 1988 by which he has remanded the matter to the trial court with the direction to hear the party afresh and re-write the judgment and to give a clear finding on Issue No. 5 after considering the points raised by the appellant and send it back within three months from the receipt of the record. While remanding the case the learned appellate court has given liberty to press the point for additional evidence before the court below who will pass proper order in accordance with law. From perusal of the records it appears 2 that a suit has been filed by the plaintiff- appellant for setting aside the deed of gift Ext. 5. dated 17.07.1972 as the same was fraudulent, void, ab-initio, ineffective and not binding on the plaintiff. A written statement was filed and in which the objection taken that the suit is not maintainable. There is no cause of action. Suit is barred by law of limitation, estoppel, waiver and acquiescence and even barred under Section 34 of the Specific Relief Act and has further stated that the genealogy given in the plaint is correct and that the said deed of gift dated 17.07.1972 is valid and genuine. On the pleadings of both the parties the trial court framed seven issues which are as follows:- (I) Is the suit as framed maintainable? (II) Has the plaintiff got any cause of action? (III) Is the suit barred by law of limitation ? (IV) Is the suit barred by law of estoppel, waiver and 3 acquiescence? (V) Is the suit barred under Section 34 of the Specific Relief Act? (VI) Whether the deed of gift dated 17.07.1992 is fraudulent, void, ineffective and is not binding on the plaintiff? (VII) To what other relief or reliefs, if any, the plaintiff is entitled? The trial Court decided all the seven issues with their findings and decreed the suit with cost. However, while deciding the Issue No. 5 the trial court held that the suit was for setting aside the deed of gift (Ext. 5) and it comes under Section 31 of the Specific Relief Act. Thus the suit was not barred under Section 34 of the Specific Relief Act and this issue was also decided in favour of the plaintiff and against the defendant. Against the judgment and decree the appeal was preferred before the learned District Judge and by the impugned order the appellate court remanded the appeal to here 4 the party afresh. The learned Appellate Court held “in such circumstance it has been urged that the suit be remanded back to the court below to give a finding after properly discussing the case of the appellant with respect to Section 34 of the Specific Relief Act. I am satisfied that the court below has not considered the Issue No. 5 at all. He has not discussed the point raised by the appellant in that connection. He has also omitted to consider the essential point of possession over the disputed property in the suit, which was necessary for the right decision of the suit in the light of proviso to Section 34 of the Specific Relief Act and on merit”. Learned counsel for the appellant, however, contended that the remand is provided under Order XLI Rule 23 and 23A of the Code of Civil Procedure which runs as follows :- “23. Remand of case by Appellate Court.- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and 5 the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit ; and the evidence (if any) recorded during the original trial shall, subject all just exceptions, be evidence during the trial after remand.” Hence, from the perusal of the records it is apparent that a remand is maintainable under Order XLI Rule 23 when the suit has been disposed of upon the preliminary point. However, from the judgment recorded by the lower court it appear that the lower court has framed seven issues after taking into consideration the pleadings of the parties and decided each of the issues and gave a finding separately on the seven issues and hence apparently the case is not covered under Order XLI Rule 23. 6 However, the remand is also permissible under Section 23A which runs as follows :- “23A. Remand in other cases.- Where the Court form whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.” However, remand under Section 23A is permissible, if the lower court comes to a finding that re-trial is considered necessary. However, re-trial may be on some important aspect of the case having not gone into or if no issue has been framed which is relevant for deciding the lis between the parties. However, from the findings recorded by the learned appellate court there is nothing mentioned in the entire order while remanding the matter that any re-trial is required or necessary? The learned lower court, however, only given a direction that the issue no. 5 has not been considered. 7 However, the issue no. 5 has well been considered and the finding has been recorded which has been mentioned above and hence it is beyond the record that the trial court did not consider the issue no. 5, however, the learned appellate court has only directed that the case is remanded back with a direction that the lower court will re-hear and re-write a judgment. However, that is not all the more permissible for remanding a case to the trial court to re-write a judgment. The lower appellate court would have considered the material on record and gave a finding and even if the appellate court thought it fit that some evidence is necessary to be considered, he may have, under Order XLI Rule 25 recorded the evidence and decided the issue. However, without going into those parts, considering the evidence, remand of the case for re-writing a judgment is not permissible in law and hence the judgment and order of the lower appellate court is hereby set aside and the appeal is allowed. Kundan (Gopal Prasad, J.)