THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.6108 of 2010 (Dated : 01-11-2011) Between: Gandasi Santaraju and others ….Petitioners A n d Osuri Sankararao S/o Jagannadham and another ….Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.6108 of 2010 ORDER: This revision is directed against the order dated 15.12.2010 passed in I.A.No.110 of 2010 in A.S.No.38 of 2004 on the file of VI Additional District Judge, Fast Track Court, Narsapur, West Godavari District, whereby and whereunder, the learned Additional District Judge dismissed the application filed under Order 41, Rule 25 C.P.C. 2. The petitioners herein are the plaintiffs in O.S.No.42 of 1998 on the file of Senior Civil Judge, Narsapur. They filed the suit for specific performance of the agreement dated 4-6-1983 and they also sought for alternate relief of refund of the advance amount of Rs.20,000/- with interest at 24% per annum. The defendants filed written statement resisting the claim of the plaintiffs. The trial Court, on considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to refuse to grant the relief of specific performance, while granting alternative relief of refund of the advance amount. Assailing the said judgment and decree, the plaintiffs filed A.S.No.38 of 2004. The plaintiffs also moved I.A.No.110 of 2010 in the appeal under Order 41 Rule 25 CPC to frame additional issues. The appellate Court dismissed the application, by order dated 15.12.2010. The relevant portion of the order reads as hereunder:- “ Under Order 41 Rule 25 C.P.C., if the appellate Court feels that it is essential to the right decision of the suit upon the merits, if necessary frame issues and refer the same for trial to the Court from whose decree, the appeal is preferred. When the lower court has omitted to frame or try any issue, but in exercising such powers, the appellate court could not reverse the judgment and decree of the lower court, but retains the matter on its file and only calls for a finding by the lower court on some issue or issues. The petitioner in the affidavit pleaded that lower court ought to have framed these issues, basing on such pleadings. I have gone through the suit agreement, the plaint averments and the written statement averments and there is no specific pleading regarding the extent and regarding Ex.A.6 letter. It is only the piece of evidence to decide the main issue in controversy. The question of remand or referring the matter under Order 41 Rule 25 C.P.C., by the appellate Court arises only on reproduction of the evidence but not at this juncture. Further the appellate court can pronounce the judgment if it feels that the evidence on record is sufficient to pronounce judgment, instead of remanding the matter to the lower court. Hence, I am of the opinion that they party of the appeal as a matter of right before advancing the argument in the appeal cannot ask to refer the mater to the lower court and it is up to the appellate court to decide whether those two issues are necessary or not and the evidence on the record is sufficient to decide those issues or there is any necessity to refer the matter to the lower Court permitting the parties to adduce additional evidence. Hence, I find no merits in this petition”. 3. Assailing the order, the plaintiff-appellant has filed this revision. 4. Notice before admission came to be ordered on 28.01.2011. The respondent entered appearance through a counsel. 5. Heard learned counsel appearing for the petitioner. 6. Learned counsel appearing for the petitioner submits that when an application has been moved by the petitioner to the appellate Court to frame additional issue, the appellate Court has to consider the same before hearing the appeal on merits. Therefore, dismissal of the application filed by the petitioner/appellant by the appellate Court is not legal and proper and the same is liable to be set aside. In support of his submissions, reliance has been placed on the decision of Supreme Court in Bachahan Devi v. Nagar Nigam, Gorakhpur[1] and P.Purushottam Reddy v. Pratap Steels Ltd.[2]. 7. Learned counsel appearing for the respondent submits that the appellate Court dismissed the application with an observation that the question of framing additional issue would be considered on hearing the appeal on merits. He would also contend that framing of additional issue by the appellate Court has to be considered only on hearing the entire appeal on merits. In support of his submissions, reliance has been placed on the judgment of this Court in G.V.Krishnaiah v. Yemmiganur Weavers Co-operative Society, Nandyal[3], wherein it has been held that a perusal of Order 41 Rule 25 CPC discloses that the necessity to frame additional issue would arise for the appellate Court only when it comes to the conclusion that the trial Court had omitted to frame or try an issue or to determine any question of fact, which was essential for the decision in the suit, on merits. By and large, it is an exercise to be undertaken by the appellate Court on its on accord, than at the instance of the parties. The parties cannot be said to be vested with any right to insist that the lower appellate Court must frame the issues. 8. Order 41 Rule 25 reads as hereunder:- “25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from:- Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon merits, the appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree, the appeal is preferred and in such case shall direct such Court to take additional evidence required; and such Court shall proceed to try such issue and shall return the evidence of the appellate Court together with its findings thereon and the reasons therefore [ within such time as may be fixed by the appellate Court or extendable by it from time to time].” 9. A plain reading of the provision indicates that the appellate Court while considering the appeal on merits comes to the conclusion that proper issues have not been framed, the appellate Court can frame the issues and refer them for trial to the trial Court. Indeed the trial Court in this case has rightly observed that the question of framing additional issues would be considered on hearing the appeal on merits. Therefore, the order impugned in the revision does not suffer from any illegality or irregularity warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India. 10. The Civil Revision Petition is accordingly dismissed. No costs. _____________________ B.SESHASAYANA REDDY, J Dt.01-11-2011 *RAR [1] (2008) 12 Supreme Court Cases 372 [2] (2202) 2 Supreme Court Cases 686 [3] 2007(3) ALT 379