{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.46 OF 2011 Hasankhan Raheman Khan, died, through legal heirs: 1 Alimunnisabegum w/o Hasankhan, age: 65 years, Occ: Household, R/o Khuldabad, Mohalla Kaman, Taluka Khuldabad, Dist.Aurangabad. 2 Subhan Khan s/o Hasan Khan, age: 40 years, Occ: Business, Resident of as above. 3 Nawaz Khan s/o Hasan Khan, age: 38 years, Occ: service, Resident of as above. 4 Amjad khan Hasan Khan, aged 28 years, Occ: Agriculture, Resident of as above. 5 Shehnaz Begum w/o Mohd. Hussain, aged 42 years, Occ: service, Resident of as above. 6 Parveen Begum w/o Sher Khan, age: 36 years, Occ: Household, Resident of as above. 7 Nasreenbegum w/o Shaikh Ahmed, aged 34 years, Occ: Household, Resident of as above. 8 Tasleem Begum w/o Shaikh Bashir, age: 32 years, Occ: Household, {2} Resident of as above. Appellants Versus Nasr Khan s/o Zakir Hussain, age: major, Occ: Business, Resident of Khuldabad, Taluka Khuldabad, District Aurangabad. Respondent Mrs.A.N.Ansari, advocate for the appellants. Mr. A.D.Kasliwal, advocate for respondent- sole. CORAM : R.M.BORDE, J. DATE : 16 th March, 2011 ORAL JUDGMENT : 1 Admit. Appeal is taken up forthwith and heard finally by consent of learned Counsel for respective parties. 2 This appeal is directed against the order passed by District Judge-1, Aurangabad, on 08.12.2010 in Regular Civil Appeal No.232/2009, thereby quashing and setting aside the judgment and decree dated 12.08.2009, passed in Regular Civil Suit No.366/2009 and remitting the matter back to the trial Court for deciding the matter afresh. 3 The only substantial question of law arises for consideration in the matter is: {3} Whether the first appellate Court was justified in exercising jurisdiction under Order 41 Rules 23 & 23A of the Code of Civil Procedure in remitting the matter back to the trial Court for considering the issue of maintainability of the suit, instead of deciding the same. 3 The suit was presented by the appellants herein – original plaintiffs claiming decree of perpetual injunction against the Respondent – original defendant. It is not necessary to go into the factual details of the matter, however, suffice it to note that at the trial of the suit, issue as regards maintainability of the suit was raised by the defendant. The trial Court has considered the objection without framing a specific issue in that regard. The discussion in respect of maintainability of the suit finds place in paragraphs no.6 to 9 of the judgment of the trial Court. In spite of consideration of issue by the trial Court in respect of maintainability of the suit, a grievance was made before the first appellate Court by the original defendant – respondent herein that the trial Court has failed to frame the issue as regards maintainability of the suit and as such, the matter is required to be remitted back to the trial Court for considering the said issue. As recorded earlier, the trial Court has considered the issue in detail and recorded a specific finding that the suit is maintainable. If at all the first appellate Court decides to disagree with the trial {4} Court and record a different finding or decides to agree with the finding recorded by the trial Court, it was open for the first appellate Court to frame a point for consideration and record a finding in that regard. The first appellate Court is invested with power to appreciate the evidence and record findings on all the issues of fact or law involved in the matter. 4 Both the Counsel appearing before me agree that no further evidence is required to be adduced for consideration of issue of maintainability of suit and the question posed before the first appellate Court can be dealt with by the Court. The first appellate Court has committed an irregularity in remitting the matter back to the trial Court for deciding the question of maintainability of the suit instead of deciding the same. 5 In this view of the matter, the order passed by District Judge-1, Aurangabad on 08.12.2010 in Regular Civil Appeal No. 232/2009, deserves to be quashed and set aside and same is accordingly quashed and set aside. The first appellate Court shall deal with the appeal and decide all the questions arising in the appeal, including the issue of maintainability of the suit. In the facts and circumstances of the case, there shall be no order as to costs. Civil Application No.3095 of 2011 does not survive and stands disposed of accordingly. Both the parties agree that they would appear before the first appellate Court on 28th March,2011 {5} and as such, no separate notice requiring their presence before the first appellate Court is required. The first appellate Court shall decide the appeal expeditiously. R.M.BORDE JUDGE adb/ao4611