V. K. GUPTA, J. ( 1 ) JUDGMENT and decree 1st September, 1995 passed by the learned senior subordinate Judge at Port Blair in Title Suit No. 6 of 1991 came up for consideration before the learned District Judge, Port Blair in Civil First Appeal. Upon hearing the learned advocates for the parties and on consideration of various points involved, learned District Judge vide Judgment under appeal dated 28th November 1997, after setting aside the judgment and decree of the learned trial court and by allowing the Civil First Appeal, sent back the suit on open remand for trial afresh. It is against this judgment that the present appeal has been filed by the appellant who was the defendant in Title Suit No. 6 of 1991. ( 2 ) THE respondent in the appeal has been duly served. Affidavit of service was also filed. Today also a fresh affidavit of the service has been filed whereby it is indicated that the respondent was sent notice under registered post with acknowledgement due card and uptil date, the same has not yet been received back, thus raising a presumption of due service. ( 3 ) MR. Gupta, learned Advocate for the appellant, has submitted that even if the learned District Judge did not agree with the findings of the learned trial Judge with regard to the admissibility, relevance or reliability of the documents produced before the learned trial Judge by the plaintiff-respondent, there was no reason for the learned District Judge to remand the suit for re-trial since the learned District Judge himself could have considered all these aspects in the appeal before him. ( 4 ) RULE 23a of Order 41 of the Code of Civil Procedure provides for the remand of a suit to the trial court in a situation where the decree passed by the trial court is reversed in appeal and the re-trial is considered necessary by the appellate court. ( 5 ) RULE 23a of Order 41 of the Code of Civil Procedure reads thus :"r. 23a. Ramand in other cases.-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 re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23. Ramand in other cases.-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 re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23. " ( 6 ) IN the present appeal, on a careful consideration of all the relevant facts and circumstances and on a perusal of the judgment rendered by the learned District Judge and also by the learned trial court, I find that the learned District Judge erred in ordering the remand of the suit for re-trial. If the learned District Judge was of the view that the documents produced by the plaintiff-respondent before the learned trial court during the course of trial as such were neither reliable nor authentic, or even not admissible, or that the documents were not relevant to the issues involved in the case, this, in my opinion, could not be a reason germane, or a valid ground for ordering the remand of the suit for re-trial. The suit filed by the plaintiff-respondent in the trial court had proceeded against the defendant-appellant ex parte and the plaintiff-respondent had ample opportunities of leading evidence and proving his case. If during the course of trial and by way of leading ex parte evidence, the plaintiff-respondent adduced evidence, either oral or by production of documents, the question of relevance of this evidence, both documentary as well as oral, and the admissibiliy of the documents produced in the trial were all such points which fell for consideration by the learned District Judge by way of appreciation of evidence, and in the manner prescribed either in the Evidence Act or in the Code of Civil Procedure. ( 7 ) IN this view of the matter, therefore, the learned Appellate Court was itself competent to consider the issues involved in the suit by exercising the powers of the First Appellate Court and to deal with them on their merits. It was not a situation where the appellant-defendant had prayed for remand so as to enable him to controvert any facts as brought about by the plaintiff-respondent or to afford some opportunities either of cross-examing the witness or refuting the case put forth by the plaintiff respondent. It was not a situation where the appellant-defendant had prayed for remand so as to enable him to controvert any facts as brought about by the plaintiff-respondent or to afford some opportunities either of cross-examing the witness or refuting the case put forth by the plaintiff respondent. In fact it was the case of the appellant before the First Appellant Court and it has been the appellant's case before me also that it wanted the First Appellate Court to itself decide the points involved in controversy and the issues, since the First Appellate Court had ample powers to do so. There was no such prayer for remand by the plaintiff-respondent either since he, in any case, had absented himself from the hearing of the appeal. The order of remand for the purpose of re-trial in a situation like the present one might have enabled the plaintiff-respondent to make out a fresh case; but then, as noticed above, there was no such request from the plaintiff. The making out of a fresh case was not warranted either, nor could any such ground be called upon from the judgment of the learned District Judge. The plaintiff-respondent had ample opportunities to prove his case during the trial when the ex parte evidence was being laid. The entire case revolved upon the appreciation of evidence as was available to the learned District Judge while exercising the power of the First Appellate Court. If during the course of such appreciation of evidence, the District Judge formed a view that the plaintiff had failed to establish the case or that the plaintiff had succeeded in doing so, it was open to him to either uphold the decree impugned in the appeal or to set it aside. A plain reading of Rule 23a clearly suggests that in a situation like this, it was not open for the learned First Appellate Court to order for remand of the case for re-trial of the suit, more particularly so when none of the parties had asked for it. A plain reading of Rule 23a clearly suggests that in a situation like this, it was not open for the learned First Appellate Court to order for remand of the case for re-trial of the suit, more particularly so when none of the parties had asked for it. Remand of the case for re-trial, as is well-known, has to be resorted to by the Appellant Court only in a situation where either party specifically prays for it so as to bring out certain facts not otherwise available or to meet unforceable situation, or for that matter to improve upon such material as might be permissible under law and admissible in evidence, if, in a given situation, if might have escaped being produced in the court due to inadvertence or some such like factor. ( 8 ) BASED upon the aforesaid reasons, therefore, I am convinced that the judgment of the learned District Judge suffers from patent legal infirmity inasmuch as, an excess of the jurisdiction vested in it under Rule 23a of Order 41 of the Code of Civil Procedure, it ordered the remand of the suit for re-trial. The judgment of the learned District dated 28. 11. 97 is, accordingly, set aside. ( 9 ) IT is directed that the learned District Judge shall re-hear the appeal in the light of the observations made hereinabove and decide all questions and points involved in the appeal purely on their merits and totally uninfluenced by any observations or findings contained in the judgment dated 28th November, 1997. Learned District Judge shall also ensure that the respondent is served a proper notice of appearance before the hearing takes place. The appeal is allowed. There will be no order as to costs. No formal decree need be passed. Let urgent certified copy of this judgment be delivered to the appellant. Appeal allowed