M. F. SALDANHA, J. ( 1 ) I have heard the petitioners' learned Advocate as also the respondents' learned Advocate. ( 2 ) THESE civil revision petitions raise an interesting facet of some significance with regard to the interpretation of Rule 25 of order 41 of the C. P. C. Briefly stated, what had happened was that the present petitioner filed a suit before the Trial Court for certain mandatory reliefs and the real point of friction was the question as to whether the defendants who are the respondents here, should be ordered to remove certain stone slabs which according to the plaintiffs were causing some obstruction. The suit was decreed in favour of the plaintiffs and the defendants carried the matter in appeal. At the hearing of the appeal, the defendants raised a point with regard to the legality of both the possession and ownership of the disputed area. They contended that in the written statement, they had taken up the plea that the plaintiffs' original vendors did not possess any clear title in respect of this area and that therefore, neither the possession nor the ownership is established. The argument proceeded on the footing that the area in question belongs to a public authority as certain public performances were organised there and it was also contended that the plaintiffs cannot claim any reliefs in respect of that area without first establishing their possession and ownership. The learned Appellate Judge after considering the law on the point, recorded the finding that this aspect of the matter is very basic to the decision of the appeal and he also took note of the fact that the defendants had raised this point in their written statement. The learned Judge therefore, held that it was necessary to frame an additional issue with regard to this aspect of the case and to remand the matter to the Trial Court for the limited purpose of doing this and recording any evidence that may have been necessary for this purpose. It is against this order of remand, that the present civil revision petitions have been filed. There are two petitions because, basically, two applications were made, one for framing an additional issue and the second one for recording additional evidence. It is against this order of remand, that the present civil revision petitions have been filed. There are two petitions because, basically, two applications were made, one for framing an additional issue and the second one for recording additional evidence. ( 3 ) THE petitioners' learned Advocate has assailed the order in question because, he submits that it is impermissible in law for such an order to have been passed on the state of the present record. The learned Advocate does not dispute the fact that in appropriate cases even at the appellate stage, it may be permissible to direct the framing of an additional issue and the recording of additional evidence, but he points out that the burden of establishing that there is justification for this and more importantly, that the party applying to the appeal Court had just and valid ground for not having agitated this aspect of the matter before the Trial Court, must be first proved to the satisfaction of the appeal Court. The learned Advocate submits that no reasons were put forward before the appeal Court as to why the defendants did not agitate this aspect of the case at the time of the trial nor has anything been stated that they were prevented from doing so. He submits that this special provision that is contained in Order 41, Rule 25 can be invoked only in appropriate and exceptional cases provided there is sufficient material to justify such an indulgence and that in the absence thereof, it should not and cannot be permitted. Furthermore, on merits, learned Advocate submits that the ground itself is frivolous because the title of the plaintiffs' vendor is now sought to be questioned in respect of a transaction that has taken place several decades back and that it is very clear, that there is no substance whatsoever in this ground which can never be established. He submits that the whole exercise is to delay the execution of the decree which the plaintiffs have obtained by seeking to reopen the matter before the Trial Court and he, therefore, submits that both in law and on facts, interference is called for by this Court. ( 4 ) THE respondents' learned Advocate has supported the order. He relies heavily on the provisions of Order 41, Rule 25. ( 4 ) THE respondents' learned Advocate has supported the order. He relies heavily on the provisions of Order 41, Rule 25. It is his submission that if the defendants had not pleaded the particular case in the written statement and had taken up the issue or plea for the first time before the appeal Court, that the burden would have been extremely heavy on them to satisfy the court that they should be permitted to introduce a new case for the first time at that stage. On the contrary, the learned advocate relies heavily on the fact that this defence has been set out in the written statement. He states that an issue along these lines was therefore, absolutely essential and had the issue been framed, that his clients would have justified their defence, but that the non-framing of the issues had created serious prejudice to the case of the defendants and that therefore, corrective action is very essential. His further submission is that once he can satisfy the Court that the plea was in fact taken up in the written statement, that no default can be alleged as far as the defendants are concerned and the argument that they should have shown just and valid cause is without substance in this background. On merits, the respondents' learned Advocate has vehemently submitted that it is condition precedent for the plaintiffs to establish both title and possession of the disputed area before obtaining a decree of the type that has been passed. The learned Advocate submits that these aspects cannot be presumed and that therefore, the Trial Court was in error in having passed the decree and he submits that despite this position, all that the appeal Court has done is to have afforded both the parties a fair opportunity of dealing with the evidence under this head. His contention is that whereas it is absolutely essential to the defence that they be given an opportunity to establish their case, that the learned Judge has been equally fair to the plaintiff by affording them an opportunity to adduce evidence if they so desire, or to refute, the evidence which the defendants seek to bring before the Trial Court. His contention is that whereas it is absolutely essential to the defence that they be given an opportunity to establish their case, that the learned Judge has been equally fair to the plaintiff by affording them an opportunity to adduce evidence if they so desire, or to refute, the evidence which the defendants seek to bring before the Trial Court. The learned advocate also submits that no prejudice of a real nature can be complained of by the petitioners because, the decree has not been set aside, but that this is a limited remand for a prescribed purpose and that once the record comes back to the appeal court, it will form part of the appellate record and the matter will be disposed of on merits. In this background, he submits that the order is well within the scope of Rule 25 of Order 41 and he reinforces his argument with the submission that the appellate Judge has himself categorically recorded that these aspects of the matter are very essential for the detemaination of the appeal. ( 5 ) IN order to resolve the controversy, it would be essential for the Court to construe the correct ambit and scope of Rule 25 of order 41. While I do concede that provision has been made for the framing of additional issues and acceptance of additional evidence at the appellate stage, it is condition precedent that the appeal Court must come to the conclusion that the lacuna in the record has occured due to a default in the procedure adopted by the Trial Court. This is very different from a situation where either the plaintiff or the defendant is at fault. I need to draw a distinction here because, if the parties to the litigation have defaulted, then it is absolutely essential for them to satisfy the appeal Court that there are extremely valid and cogent grounds for condoning that default and for still permitting the aforesaid procedure in the interests of justice. This is a heavy burden which must be discharged by the defaulting party and it must also be shown to the satisfaction of the appeal Court that the party was prevented from doing so despite due care and caution and best efforts. This is a heavy burden which must be discharged by the defaulting party and it must also be shown to the satisfaction of the appeal Court that the party was prevented from doing so despite due care and caution and best efforts. What Rule 25 provides for is a situation where despite the vigilance, meticulousness and best efforts on the part of the aggrieved party, an issue is still not framed and a classic situation would be one where the party has requested the learned Trial Judge to frame an issue and the application has been turned down or where evidence was sought to be adduced and the Trial Court has disallowed it. If this has not happened/a mere reference to something in the written statement will not be sufficient because, it will have to be presumed that the party has either waived that ground or has decided to give it up or not to press it. Had the defendants demonstrated that they had requested for the framing of the additional issue or that they were disallowed from leading evidence along the lines which they now want to do, it would have been a case which comes within the ambit of Rule 25. The spirit behind Rule 25 is that if something has gone -wrong due to a procedural error on the part of the Trial Court, that the affected party should not be prejudiced because of that and therefore, such corrective action is permitted. The spirit of the law is not that if as an after thought, pleas are sought to be raised before the appeal Court, that the rule of finality should be given a go-by and that indiscriminately cases should be remanded, reopened or that parties should be permitted to graft on to the original record what they should have done in the first instance. This is totally and completely outside the scheme of the law and the petitioners' learned Advocate is therefore, justified in his objection that such a procedure is not permissible at the second round or at the post decretal stage of the proceedings unless very valid ground and cogent reasons are put forward and established. This is totally and completely outside the scheme of the law and the petitioners' learned Advocate is therefore, justified in his objection that such a procedure is not permissible at the second round or at the post decretal stage of the proceedings unless very valid ground and cogent reasons are put forward and established. ( 6 ) HAVING regard to the aforesaid position in law, I am of the view that the defendants will be deemed to have given up the plea which they did not agitate before the Trial Court and they cannot now seek to resurrect it through the present interim applications. The fact that this aspect of the matter may have been of some importance to the defence is purely irrelevant because, it is clear that the defendants did not agitate the matter along those lines and nothing prevented them from doing so. On the other hand, having regard to the law of pleadings, it must be presumed that the plaintiffs' case that he has every right to ask for an order of injunction regarding the premises in the disputed area has not been refuted and that therefore, it has virtually been accepted. It is in this background that interference will be necessary from this Court as the learned appellate Judge has erred in having allowed the two interim applications ( 7 ) THE civil revision petitions accordingly succeed. The appellate order dated 9-10-1992 is set aside. I. As. III and IV are dismissed. The parties are directed to appear before the appellate Court on 1-10-1996. The interim orders passed by this court stands vacated. The appeal Court shall hear the appeal on merits and dispose of the same. No order as to costs. --- *** --- .