1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4048 OF 2009 Smt.Mangala Presukh Dabi & Ors. ...Petitioners vs. Smt.Sharada Ramesh Ozha & Ors. ...Respondents Ms Kiran Bhagalia i/b Ms Asha Bhambawani for the petitioners Mr.Jaydeep Deo for respondent nos.1 to 4. CORAM :A.S.OKA,J. DATE : SEPTEMBER 1, 2009 P.C. 1 Heard the learned counsel for the petitioners and the learned counsel for the respondents. The respondents are the original plaintiffs and the petitioners are the defendants in a suit filed by the respondents for eviction. The court of Small Causes passed a decree for eviction on the ground of bonafide and reasonable requirement. The petitioners preferred an appeal. The appeal is pending before the District court. An application at Exh.16 was made by the petitioners. In the said application, a prayer was made for an order of remand on the ground that the possibility of passing partial decree of eviction has not been considered by the trial court. By the order impugned in this writ petition under Article 227 of the Constitution of India, the said application has been rejected by the District Court. 2 2 The learned counsel for the petitioners has invited my attention to the findings recorded by the Appellate court while passing the impugned order. Her submission is that the issue raised by the petitioners cannot be finally concluded even before the appeal is heard on merits. The learned counsel for the respondents supported the impugned Judgment and order. 3 I have given careful consideration to the submissions. The petitioners have preferred a substantive appeal against the decree for possession. The court of appeal which is dealing with the said appeal has all the powers under the Code of Civil Procedure,1908 including the power to pass an order of remand. At the time of final hearing of the said appeal, the appellant can always contend before the Appellate Court that it is necessary to pass an order of remand. It is not necessary for the appellant to make an application in writing during the pendency of the appeal for seeking the order of remand. 4 In the present case, the contentions which are raised by the petitioners in the application at Exh.16 could have been raised by the petitioners at the time of final hearing of the appeal. As a matter of fact, the prayer for remand can be considered by the Appellate Court at the time of final hearing of the appeal and in 3 fact, there was no occasion for the petitioner to make such application. It is, however, true that the Appellate court could not have considered the merits of the plea of the petitioners while passing the impunged order. Therefore the order will have to be set aside only on the ground that the prayer for remand will have to be considered at the time of final hearing of the Appeal. 5 In the circumstances, I pass the following order : i) Impugned Judgment and Order dated 24 th February 2009 is quashed and set aside. ii)The application made by the petitioners at Exh.16 is disposed of. However, it will be open for the petitioners to raise all the contentions which are raised in the said application at the time of final hearing of the appeal. It will be open for the petitioner to pray for passing an order of remand. All contentions which are raised by the petitioner in the application at Exh.16 are kept open and the said contentions can be raised by the petitioners at the time of final hearing of the appeal. It is obvious that the respondents will be entitled to oppose the prayer for remand. iii)All contentions on merits are expressly kept open. iv)Writ Petition is disposed of in above terms. 4 JUDGE