1 a0-51.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 51 OF 2010 WITH CIVIL APLICATION NO. 4806 OF 2010 Shri. Sitaram Bujaba Shinde, Age: 70 years, Occ: Nil, R/o. Anandswami Galli, Old Jalna, Tq. & Dist. Jalna. ...APPELLANT VERSUS Swakul Sali Samaj Panch Mandali Vishwasta Through President Chandrakant s/o Shrikishanrao Adake, Age: 48 years, Occ: Tailor, R/o. Near Shani Mandir, Old Jalna, Tq. & Dist. Jalna. ...RESPONDENT ... Mr. M.M. Patil (Beedkar) Advocate for appellant. None for the respondent. ... CORAM: S.S. SHINDE, J. DATE : 14TH JUNE, 2011 ORAL JUDGMENT : Heard the learned Counsel appearing for the appellant. 2. This appeal arises from the judgment and 2 a0-51.10 order dated 04-02-2010 passed by the District Judge-2 Jalna in Regular Civil Appeal No.274 of 2008. 3. It is not necessary to go in to the details of the facts. The order of remand by the District Judge-2 Jalna was with one of the reasons that oath was not administered to the witnesses by the trial Court before recording their evidence. While passing order remanding matter back to trial Court, lower appellate Court in operative part of the order in clause (C) and (D) has observed thus : "(C) The learned trial Court shall give opportunity to the adverse party to cross examine them. (D) The learned trial Court shall also give opportunity to both the parties to adduce any more evidence, if they choose." 3 a0-51.10 4. Learned Counsel appearing for the appellant submits that the District Judge-2 Jalna should have administered oath to the witnesses and should have recorded evidence. It is further submitted that the order passed by the District Judge-2 Jalna is without addressing the issues on the merits. The trial Court has dealt with all aspects of the matter on merits. However, without touching to the merits of the matter, the District Judge-2 has passed the impugned order, thereby remanding the matter for fresh hearing, such order of remand is not permissible. He further submitted that there was no occasion for the District Judge-2 Jalna to observe in clause (C) and (D) that the trial Court shall give opportunity to the adverse party to cross examine them or trial Court shall also give opportunity to both the parties to adduce any more evidence, if they choose. Such general directions cannot be issued. Therefore, learned Counsel for the 4 a0-51.10 appellant submits that the appeal from order may be allowed. 5. Though this matter was listed for hearing on 07-06-2011 none appeared for the respondent. Even today, none appeared for the respondent. 6. In my opinion, such order which is impugned in this appeal, is not sustainable. If the trial Court has decided the matter on all points adverting to the merits of the matter, it was incumbent upon the lower appellate Court to deal with the issues even on merits and if felt necessary remand the matter to the trial Court. However, from the perusal of the impugned judgment and order, it does appear that no such discussion on merits is there in the impugned judgment. The Provisions of Section 107 of the Code of Civil Procedure reads thus : “Section 107. Powers of Appellate Court.-(1) Subject to 5 a0-51.10 such conditions and limitations as may be prescribed, an Appellate Court shall have power- (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein.” 7. From the perusal of Section 107(2) of the Code of Civil Procedure, it is clear that the 6 a0-51.10 appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. Therefore, if the lower appellate Court was of the view that no oath was administered to the witnesses, same exercise should have been done by the lower appellate Court there itself. There was no necessity to remand the matter on that count. I find considerable force in the argument of learned Counsel appearing for the appellant that there is no discussion in the judgment on merits of the matter by the lower appellate Court like trial Court. Therefore, in absence of addressing issues raised in the matter on merits, the order of the lower appellate Court remanding the matter back to the trial Court was impermissible. The observation/direction of the lower appellate Court in clause (C) and (D) was unnecessary. There was no prayer to that effect by the respondent. In that view of the matter, lower appellate Court was not justified in 7 a0-51.10 granting relief over and above which was not prayed by the respondents. 8. Therefore, in my opinion, taking overall view of the matter, the order impugned in this appeal deserves to be quashed and set aside. Accordingly, judgment and order dated 04-02-2010 in R.C.A. No.274 of 2008 passed by the District Judge-2 Jalna is quashed and set aside. R.C.A. No.274 of 2008 is restored to its original file. The lower appellate Court shall hear the parties and complete the formalities if any regarding administering oath to the witnesses there itself without remanding the matter back to the trial Court, since it has power like the Court of original jurisdiction under Section 107(2) of the Code of the Civil Procedure. 9. Appeal from Order is allowed to the above extent and stands disposed of. 8 a0-51.10 10. In the light of final disposal of Appeal From Order, nothing survives for consideration in Civil Application, same stands disposed of. sd/- [S.S. SHINDE, J.] sut/JUN11