S. D. SHAH, J. ( 1 ) ADMIT. Mrs. Sonal D. Vyas appears for Respondent Nos. 5 and 6 in Second Appeal No. 171 of 1995 and for Respondent Nos. 1 and 2 in Second appeal No. 172 of 1995 and waives service of admission on behalf of respective respondents. The presence of remaining respondents is not needed for the purpose of deciding this Appeal and hence their names are ordered to be deleted. With the consent of the learned Advocates appearing for the parties, printing is dispensed with and the appeals are heard today. ( 2 ) THESE two Second Appeals are directed against the judgment and decree passed by Assistant Judge, Valsad in Regular Civil Appeal No. 110 of 1986 dated 31st August, 1995 and Regular Civil Appeal No. 17 of 1990 dated 31st August, 1995. Since a common substantial question of law is involved in both these appeals, though on different facts and arising from different Civil suits, they were heard together and are being disposed of by this common judgment. ( 3 ) BOTH the parties have agreed that it is not necessary to refer in detail to the factual controversy in these two appeals as substantial question of law involved in these appeals can be decided without elaborate reference to facts. ( 3 ) BOTH the parties have agreed that it is not necessary to refer in detail to the factual controversy in these two appeals as substantial question of law involved in these appeals can be decided without elaborate reference to facts. The substantial question of law which is involved and which is required to be formulated for the decision of this Court is as under :"whether on the facts and in the circumstances of the cases, in suits for specific performance when the trial Court has framed issues, which are most relevant and germane to the suits of such nature, is it open to the First Appellate Court exercising power under Sec. 96 of the Civil Procedure Code to reverse the judgment and decree of the trial Court on very ambiguous and nebulous statement that certain issues which ought to have been raised were not raised and certain issues which were raised and answered were not necessary to be raised and that attention was not focused by the trial Court on the relevant issues, is a permissible exercise of power to quash and set aside such otherwise legal and proper decree and to remand the entire matter to the trial Court in view of the provision of Sec. 99 of the Civil Procedure Code read with Order 41 Rules 23, 23a and 24 of the Code of Civil Procedure. "3a. In Second Appeal No. 171 of 1995, appellant is the original plaintiff. He has instituted Regular Civil Suit No. 160 of 1979 for specific performance of the agreement to sell dated 24th of September, 1978 alleged to have been executed in his favour by defendant Nos. 1 to 4 and also for further relief that the subsequent sale deed executed by defendant Nos. 1 to 4 during the pendency of the earlier banakhat as well as during the pendency of the suit in favour of defendant Nos. 5 and 6 was null and void. Such suit is dismissed by the trial Court after framing issues which it raised based on the pleadings of the parties. The trial Court at Exhibit- 32 framed following issues :1. Whether the plaintiff proves that the defendants executed an agreement to sale the properties described in Para 13 of the plaint for Rs. 5,999. 00 ? 2. Whether the plaintiff proves that Rs. 1,500. The trial Court at Exhibit- 32 framed following issues :1. Whether the plaintiff proves that the defendants executed an agreement to sale the properties described in Para 13 of the plaint for Rs. 5,999. 00 ? 2. Whether the plaintiff proves that Rs. 1,500. 00 was paid to the defendants on 24-9-1978 towards the price ? 3. Does the plaintiff proves the terms of Satakhat as stated in Para 3 of the plaint ? 4. Does the plaintiff proves that the defendants have committed the breach of agreement ? 5. Whether the plaintiff proves that he is entitled to the specific performance of the said agreement ? 6. Is the sale deed dated 24-1-1985 executed by defendant Nos. 1 to 4 in favour of defendant Nos. 5 and 6 is legal and valid and operative and binding to the plaintiff ? 7. Is plaintiff in alternative entitled to damages in the sum of Rs. 7,500/- with interest from 24-1-1985 from the defendants ? 8. What order and decree ?and recorded following findings :1. In affirmative 2. In affirmative 3. In affirmative 4. In negative 5. In negative 6. In affirmative 7. In negative 8. As per final order ( 4 ) BASED on the aforesaid findings reached by the trial Court, it dismissed the suit and the appellant-plaintiff preferred Regular Civil Appeal No. 110 of 1986 which came to be partially allowed by the Assistant Judge Mr. Viral Y. Desai by judgment and decree dated 31st August, 1995 whereby he quashed and set aside the judgment and decree passed by Civil Judge (J. D.), Gandevi and has remanded the matter to him with directions which are vague, ambiguous, nebulous and incapable of being followed by any judge of any reasonable understanding. He has directed that the learned Civil Judge (J. D.) should take into consideration the pleadings and evidence of the parties and shall give them opportunity to make their submission and shall frame issues once again and shall thereafter record the oral as well as documentary evidence and thereafter the case is to be decided on merits expeditiously. ( 5 ) IT is the aforesaid part of the direction given by the learned Judge, though partially in favour of the appellant-plaintiff, has aggrieved the appellant-plaintiff and to say the least, it has much aggrieved this Court also. ( 5 ) IT is the aforesaid part of the direction given by the learned Judge, though partially in favour of the appellant-plaintiff, has aggrieved the appellant-plaintiff and to say the least, it has much aggrieved this Court also. ( 6 ) IN Second Appeal No. 172 of 1995, the appellant is the original plaintiff, who instituted Regular Civil Suit No. 159 of 1979 in the Court of Civil Judge (J. D.) at Gandevi for specific performance of agreement against the respondents-defendants, inter alia alleging that defendant Nos. 1 to 4 have executed an agreement to sell the suit property dated 24th of September, 1978 and that despite readiness and willingness to perform his part of the contract, they have failed to perform their part of the contract and therefore, decree for specific performance was prayed for. ( 7 ) IT was also inter alia prayed that during the pendency of the said agreement to sell and pendency of the Civil suit, the original vendors have sold the property by registered sale deed to defendant Nos. 5 and 6 and the said transaction was null and void and was liable to be voided. In such suit based on the pleadings of the parties, the trial Court framed issues at Exhibit 33 which are reproduced hereunder :1. Whether the plaintiff proves the agreement of sale as alleged ? 2. Whether the plaintiff is ready to perform the terms of agreement as alleged ? 3. Whether the suit is bad for non-joinder and misjoinder of parties ? 4. Whether the suit is maintainable in terms of the agreement ? 5. Whether plaintiff is entitled to get specific performance of contract as alleged ? 6. What order and decree ?and issue Nos. 1, 4 and 5 are answered in the affirmative while issue Nos. 2 and 3 are answered in the negative and ultimately the suit of the plaintiff is decreed by judgment and decree dated 31st January, 1990. Being aggrieved by such judgment and decree of the trial Court, the original defendant Nos. 5 and 6 preferred Regular Civil Appeal No. 17 of 1990, which is finally decided by Mr. 2 and 3 are answered in the negative and ultimately the suit of the plaintiff is decreed by judgment and decree dated 31st January, 1990. Being aggrieved by such judgment and decree of the trial Court, the original defendant Nos. 5 and 6 preferred Regular Civil Appeal No. 17 of 1990, which is finally decided by Mr. Viral Y. Desai, Assistant Judge, Navsari, by judgment and decree dated 31st of August, 1995, whereby he has allowed the appeal and quashed and set aside the judgment and decree passed by Civil Judge (J. D.), Gandevi in Regular Civil Suit No. 159 of 1979. Once again, on the very nebulous, vague and ambiguous ground stating that the parties should be provided adequate opportunity to represent their case and that after hearing them and taking into consideration their pleadings, issues to be framed afresh and that oral and documentary evidence to be recorded afresh and thereafter the suit to be decided on merits. He permitted the defendant Nos. 5 and 6 to file their written statements if they have not filed. It is stated to this Court by Mrs. Sonal D. Vyas, learned Counsel appearing for respondent Nos. 5 and 6 that the defendant Nos. 5 and 6 had already filed their written statement. ( 8 ) AFORESAID brief resume of facts give rise to the aforesaid substantial question of law which is required to be considered and answered by this Court. When this court turns to the judgment and decree passed by Mr. V. Y. Desai, Assistant Judge, navsari, which is under challenge before this Court, the gist of the discussion for quashing and setting aside the judgment of the trial Court and for remanding the matter to the trial Court shortly stated is as under : (I) The issues framed by the trial Court do not reflect the fundamental disputes of the parties. (ii) The issues which ought to have been framed in a suit for specific performance of agreement are not raised. (iii) The questions on which no disputes are raised by the parties, the issues are framed, which ought not to have been raised. (iv) The disputes about non-joinder of party ought to have been raised. (ii) The issues which ought to have been framed in a suit for specific performance of agreement are not raised. (iii) The questions on which no disputes are raised by the parties, the issues are framed, which ought not to have been raised. (iv) The disputes about non-joinder of party ought to have been raised. (v) Whether the plaintiff was ready and willing to perform his part of the contract and whether the suit is properly valued and whether the proper Court fee is paid are the questions, which according to the learned appellate Court Judge were relevant issues. (vi) Issue as to whether the plaintiff was in the alternative entitled to damages ought to have been raised and in absence of such relief, whether the suit of the plaintiff was maintainable or not, was required to be raised. (vii) Issue as regards suit being within limitation ought to have been raised. (viii) Issue as to whether defendant Nos. 1 to 4 have committed breach of the order of injunction by executing sale deed in favour of defendant Nos. 5 and 6 and whether any action was required to be taken against them for contempt of Court was also required to be raised. ( 9 ) ON the aforesaid points, the learned lower appellate Court Judge has found that the judgment of the trial Court was unsatisfactory and was liable to be quashed and set aside and matter was required to be remanded to the trial Court. He, therefore, quashed and set aside the judgment and decree of the trial Court and remanded the matter to the trial Court with directions which are vague, ambiguous, nebulous and impossible of compliance by the trial Court. Mr. V. Y. Desai, learned Assistant Judge has nowhere pointed out as to which issues were required to be framed and as to which issues the trial Court has failed to frame. He has also nowhere pointed out as to which issues were wrongfully framed or were not required to be framed and yet framed by the trial Court. Though in the written statement, the defendants have taken up the contention of non-joinder of necessary parties, they have at no point of time pointed out as to which parties were necessary, in whose absence the suit was liable to be dismissed. Though in the written statement, the defendants have taken up the contention of non-joinder of necessary parties, they have at no point of time pointed out as to which parties were necessary, in whose absence the suit was liable to be dismissed. The contention was taken in the written statement without any basis and no evidence whatsoever was led as to which necessary parties were not joined. In fact, the subsequent transferee in whose favour the registered sale deed was executed, were also joined as party-defendants and the specific relief was prayed for against them also and the trial Court has very rightly framed issues on validity of such subsequent transfer also. The learned Extra Assistant Judge has also nowhere pointed out as to which opportunity was denied by the trial Court to which party and how the trial Court has failed to decide the suit on merit or demerits of the claim of the rival parties. The learned Assistant Judge has simply made very broad sweeping, unsupported and unwarranted statements in his judgment and has quashed and set aside the judgment and decree of the trial Court and remanded the matter to the trial Court for no justifiable reason whatsoever. ( 10 ) MR. D. D. Vyas, learned Counsel appearing for the appellant-plaintiff in both these appeals has very strenuously urged before this Court that the learned assistant Judge Mr. V. Y. Desai at Valsad has disposed of number of Regular Civil appeals on such vague, ambiguous and nebulous statements and has quashed and set aside the judgment and decree of the trial Court and has remanded the matter to the trial Court. He submitted that the facts and circumstances under which ordinarily the remand could be ordered by the lower appellate Court after quashing and setting aside the judgment and decree passed by the trial Court are exceptional and rare and that remand of the entire suit to the trial Court after quashing and setting aside the judgment and decree of the trial Court on ground which are absolutely flimsy, non-existent, vague, ambiguous, nebulous, unjustifiable and unwarranted in every respect should not be countenanced by this Court. ( 11 ) MR. D. D. Vyas, learned Counsel appearing for the appellant invited the attention of the Court firstly to Sec. 99 of the Code of Civil Procedure which reads as under :"99. ( 11 ) MR. D. D. Vyas, learned Counsel appearing for the appellant invited the attention of the Court firstly to Sec. 99 of the Code of Civil Procedure which reads as under :"99. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder (or non-joinder) of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. " ( 12 ) FROM the aforesaid provision of the Civil Procedure Code, it becomes clear that no decree passed by the trial Court shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any misjoinder or nonjoinder of parties or causes of action. The learned Assistant Judge appears to be totally oblivious of this statutory provision. He has not adverted to this statutory provision at all. He has in the judgment observed that issue ought to have been raised about non-joinder of parties or misjoinder of parties. One fails to understand as to how the trial Court was in error when the defendants were not in a position to establish or to plead as to who were necessary or proper parties, who were not impleaded as party-defendants. In absence of any specific pleading, when a general averment is made that the suit is bad for non-joinder of parties, no obligation can be cast on the trial Court to frame an issue as to whether the suit is bad for misjoinder or non-joinder of parties. The learned Assistant Judge has also not noted anywhere in the judgment as to which parties were necessary parties, who were not joined as party-defendants. This Court, therefore, fails to understand as to why and under what circumstances, the judgment and the decree passed by the trial Court can be faulted and can be quashed and set aside on such totally non-existent ground. ( 13 ) SECTION 99 of the Civil Procedure Code further stipulates that no decree passed by the trial Court shall be reversed or substantially varied for any error, defect or irregularity in any proceeding in the suit, not affecting the merits of the case. ( 13 ) SECTION 99 of the Civil Procedure Code further stipulates that no decree passed by the trial Court shall be reversed or substantially varied for any error, defect or irregularity in any proceeding in the suit, not affecting the merits of the case. The learned Assistant Judge, has very generally and cursorily without specifying, stated that issues which ought to have been raised were not raised by the trial Court and issues which were not required to be raised were raised by the trial Court. The learned Assistant Judge has failed to specify such issues even in the operative part of the judgment and decree that he has passed. He has not clarified as to which issue ought to have been raised by the trial Court and as to on which issue, the parties have failed to focus their attention and have failed to lead evidence, which has resulted into miscarriage of justice. Perhaps, the learned Assistant Judge himself was ignorant of any such issue and that is the reason why he could not specify any issue which he thought was required to be framed and the trial Court failed to frame. The learned Assistant Judge also did not notice any defect or irregularity in the proceeding which has affected the merits of the case. In fact, therefore, he could not have reversed or substantially varied the decree passed by the trial Court and could not have remanded the matter to the trial Court for giving fresh opportunity to the parties to represent their case, to reframe issues and to lead evidence on all issues afresh. ( 14 ) AS regards power of the appellate Court to remand the case to the trial Court, specific conditions are to be found in Order 41 Rule 23 and 23a of the Code of Civil Procedure. The said provisions are reproduced hereunder :"23. ( 14 ) AS regards power of the appellate Court to remand the case to the trial Court, specific conditions are to be found in Order 41 Rule 23 and 23a of the Code of Civil Procedure. The said provisions are reproduced hereunder :"23. Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and 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, with directions to readmit 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 to all just exceptions, be evidence during the trial after remand. 23a. Where the Court from 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 retrial is considered necessary, the appellate Court shall have the same powers as it has under Rule 23. " ( 15 ) MRS. Sonal D. Vyas, learned Counsel appearing for the contesting respondents has fairly stated that Rule 23 of Order 41 of the Code of Civil Procedure can have no application to the present case as the judgment and decree passed by the trial Court was not one, where the suit was disposed of upon a preliminary issue. The suit was tried on all issues after recording evidence of both the parties, and in one case the decree for specific performance was passed, while in another case the same was refused. It is thus clear in the present case that the provisions of Rule 23 of Order 41 can have no application. ( 16 ) IT is undoubtedly true that Rule 23a which came to be introduced by amendment Act, 1976 deals with residuary cases or other cases where the order of remand could be made by the appellate Court. It is thus clear in the present case that the provisions of Rule 23 of Order 41 can have no application. ( 16 ) IT is undoubtedly true that Rule 23a which came to be introduced by amendment Act, 1976 deals with residuary cases or other cases where the order of remand could be made by the appellate Court. The circumstances under which remand could be ordered in cases other than those covered by Rule 23 of Order 41, it is provided that where retrial is considered necessary, the appellate Court shall have same powers as it has under Rule 23 to direct as to what issue or issues shall be tried in the case so remanded. The learned Assistant Judge has not assigned any legal, proper, justifiable or cogent reason and has nowhere recorded his satisfaction that a retrial, in his opinion, was necessary. The power to remand under rule 23-A of Order 41 of the Civil Procedure Code is not to be exercised rashly and without sufficient cause. Order of retrial in any case unless it is absolutely necessary, is to be avoided. It shall have to be kept in mind by the appellate Court that a remand of a case after quashing and setting aside the decree of the trial Court with direction to re-frame issue and to permit the parties to lead evidence once again is bound to add to miseries of the parties as ordinarily trial of a Civil suit in the courts in India consume minimum five to seven years time at the stage of trial and there are towns and cities where even suits are not tried in the trial Court for a period of a decade or more. The human patience of the litigating parties, is by that time lost or exhausted and a feeling of dissatisfaction pervades the trial Court all through out the country and order of remand, therefore, which is casually made without sufficient cause, without any justifiable reason and without stating as to why retrial is necessary, is wholly unsustainable both from the point of exercise of judicial discretion as well as from the point of non-fulfilment of statutory provision. In the opinion of this Court, Rule 23a of Order 41 is only to be invoked in rarest of rare or most exceptional cases when the appellate Court is for very convincing and cogent reasons to be recorded in writing is satisfied that a retrial is necessary, failing which substantial miscarriage of justice would result. In my opinion, in the present case, in view of the most unsatisfactory vague, ambiguous and nebulous statements and totally unconvincing and unjustifiable reasons given by the learned Assistant Judge, there was no justification to quash and set aside the judgment and decree passed by the trial Court after framing proper issues and after recording evidence afresh which may be led by the parties. ( 17 ) IN view of the aforesaid legal position, these two Second Appeals are hereby allowed and the judgment and decree passed by the Assistant Judge, Valsad at Navsari in Regular Civil Appeal No. 17 of 1990 dated 31st of August, 1995 and his judgment and decree in Regular Civil Appeal No. 110 of 1986 dated 31st of August, 1995 are hereby quashed and set aside and the aforesaid two Regular Civil Appeals are remanded to the District Judge, Valsad at Navsari with direction to him to decide the same in accordance with law after hearing the parties. The judgment of this Court is directed to be sent to Mr. Viral Y. Desai, Assistant Judge, Valsad, with direction to him to read the same and to see to it in future that judgment and decree of the trial Court are not so lightly quashed and set aside on grounds which are totally non-existent, jejune and unjustifiable in law. ( 18 ) IN Second Appeal No. 172 of 1995, it is pointed out to this Court by Mrs. Sonal D. Vyas that the trial Court has not framed specific issue about legality and validity of subsequent sale deed though subsequent sale deed dated 24th January, 1985 is declared to be null and void. It may be stated that defendant Nos. 5 and 6 were already impleaded as party-defendants to the suit, and they have not made any grievance before the trial Court for not framing the issue. In fact, they have led evidence to justify sale in their favour. On the pleadings of the plaintiff and defendant Nos. It may be stated that defendant Nos. 5 and 6 were already impleaded as party-defendants to the suit, and they have not made any grievance before the trial Court for not framing the issue. In fact, they have led evidence to justify sale in their favour. On the pleadings of the plaintiff and defendant Nos. 1 to 4 and the evidence led by the parties, the trial Court has ultimately passed the decree. The defendant Nos. 5 and 6 were in fact represented by their Advocate and when they have not sought any issue, it cannot be said that the trial Court has omitted to frame an issue which ought to have been framed. However, on this count, if the learned District Judge finds that the case for remand is made out, he shall decide the appeal in view of the observations made by this Court and more particularly in view of the limitations on the power of the Court to remand the suit to the trial Court under Order 41 Rule 23-A of the Code of Civil Procedure. .