JUDGMENT The respondent herein filed O.S.No.163 of 2001 in the Court of Principal Senior Civil Judge, Kurnool, against the appellant, for recovery of an amount of Rs.1,21,819=50 ps., towards the cost of pesticides, supplied to the appellant. In the written-statement filed by the appellant, existence of transactions of supply of pesticides, on various occasions, was admitted, and it was contended that there are no outstanding dues. The trial Court dismissed the suit through its judgment dated 17-02-2003. Thereupon, the respondent filed A.S.No.52 of 2003 in the Court of IV Additional District and Sessions Judge, Kurnool. The appeal was allowed, and the case was remanded to the trial Court for fresh disposal, according to law. Hence, this Civil Miscellaneous Appeal under Order XLIII, Rule 1 (u) of C.P.C. 2. Sri K. Sitaram, learned counsel for the appellant, submits that the lower Appellate Court directed remand of the case, as though it is a matter of course. He contends that the observations and findings recorded by the lower Appellate Court warranted dismissal of the appeal; whereas the discretion vested in it, under Rule 23-A of Order XLI C.P.C., was used, without there being any factual basis for it. 3. Sri P. Veera Reddy, learned counsel for the respondent, on the other hand, submits that the lower Appellate Court had undertaken extensive discussion of the pleadings and evidence on record, and expressed the view, that it is a fit case for remand. He contends that the appellant cannot be said to have suffered any prejudice, on account of the remand. 4. The only question that arises for consideration in this C.M.A. is, as to whether the lower Appellate Court was justified in remanding the matter to the trial Court. 5. It is not necessary to refer to the pleadings of the parties in the suit, in detail. It was a claim for recovery of money on the basis of business transactions. The appellant resisted the claim on several grounds, such as, limitation, usurious nature of interest, lack of territorial jurisdiction in the Court, etc. On the basis of the pleadings, the trial Court framed the following issues: 1. "Whether there was any 'running account' between the plaintiff and defendant ? 2. Whether interest claimed by the plaintiff is usurious and excessive ? 3. Whether suit claim is barred by limitation ? 4. Whether this court has no territorial jurisdiction to try the suit? On the basis of the pleadings, the trial Court framed the following issues: 1. "Whether there was any 'running account' between the plaintiff and defendant ? 2. Whether interest claimed by the plaintiff is usurious and excessive ? 3. Whether suit claim is barred by limitation ? 4. Whether this court has no territorial jurisdiction to try the suit? 5. Whether plaintiff is entitled for the suit amount as prayed for" ? 6. On behalf of the respondent, one Mr.Sreedhar was examined as PW-1 and Exs.A-1 to A-59 were marked. On behalf of the appellant, its proprietor was examined as DW-1, and no documentary evidence was adduced. The trial Court found that it has territorial jurisdiction to try the suit; that the claim is not barred by limitation, and that the interest claimed by the respondent, cannot be treated as usurious. It, however, dismissed the suit, on the ground that the respondent failed to prove the transactions, or the existence of dues. The lower Appellate Court framed only one point, for its consideration, and ultimately remanded the matter to the trial Court, by allowing the appeal. 7. An Appellate Court is conferred with very wide powers, to re-appreciate the matter, both on questions of fact and law. An appeal is treated as continuation of a suit. The amplitude of the power of the Appellate Court can be discerned from a perusal of Rules 23 to 29 of Order XLI C.P.C. Where the evidence on record is sufficient, but the Court finds that issues have not been properly framed by the trial Court, it is vested with the power, to resettle the issues and determine the appeal, under Rule 24. On the other hand, if a suit has been decided by the trial Court by answering a preliminary issue, or points, and the lower appellate Court takes a different view, it may remand the case to the trial Court, if necessary, by directing, what issues shall be tried in the case, under Rule 23. Such an occasion may enable the parties to adduce further evidence, since they have bestowed their attention on the earlier round before the trial Court, only on the preliminary issue. 8. Such an occasion may enable the parties to adduce further evidence, since they have bestowed their attention on the earlier round before the trial Court, only on the preliminary issue. 8. There may be instances, where the effort by one of the parties to the suit, to adduce evidence before the trial Court did not fructify, or where such evidence could not be procured, at the relevant point of time, in spite of due diligence, and as a result, that party had suffered a decree of the trial Court. Rule 27 of Order XLI C.P.C., enables such party to adduce additional evidence before the lower Appellate Court. Depending on its satisfaction, the lower Appellate Court may receive the evidence, by itself, or may direct the trial Court to record the evidence, and forward the same to it. Rule 29 empowers the Appellate Court to re-appreciate the matter, in the light of additional evidence so received, and to determine the case. 9. Up to the year 1976, the remand of a case to the trial Court was confined to a situation where, the suit was decided on the basis of a finding on a preliminary point, or issue, and where such finding is reversed by the Appellate Court. Through Act 104 of 1976, Parliament added Rule 23-A, slightly widening the scope of remand. It is beneficial to extract both the Rules: Order XLI, Rule 23: "Remand of case by Appellate Court: 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, which directions to re-admit 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 all just exceptions, be evidence during the trial after remand". Rule 23-A: "Remand 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". 10. The exercise of power to remand a case under Rule 23 is purely objective in nature, hardly any element of discretion exists. The two circumstances that are contemplated under Rule 23 are, that the suit has been decided on a preliminary issue, and that the finding recorded by the trial Court, on the preliminary issue, was reversed by the Appellate Court. In contrast, the scope of the power to remand a case under Rule 23-A is wider. In comparison to Rule 23, the power under this Rule is discretionary in nature. However, this discretion is also circumscribed by limitations, and it is not absolute. The first and foremost factor to invoke this power is, that the decree of the trial Court must be otherwise liable to be reversed: the second is that, notwithstanding its disagreements with the trial Court, the Appellate Court feels that retrial of the case is necessary. Therefore, before the Appellate Court chooses to remand the matter under Rule 23-A, it must satisfy that both the ingredients, referred to above, are present. 11. Though it may sound some-what technical and utopian, while exercising the power under Rule 23-A, the Court is required to observe a semblance of sequence of events. The conclusion to remand the case must be preceded by the reversal of the decree. The Court must have reached the conclusion to reverse the decree on its appreciation of the pleadings, evidence and applicable law. But for its inclination to remand the matter, the conclusion to reverse the decree must be complete and perfect. The judgment, in so far as it reverses the decree, must stand by itself. It is only the feeling of the Appellate Court, that the matter needs retrial, that must result in remand. To put it in other words, the reversal of a decree cannot be resorted to, as a measure to provide a basis for remand. The judgment, in so far as it reverses the decree, must stand by itself. It is only the feeling of the Appellate Court, that the matter needs retrial, that must result in remand. To put it in other words, the reversal of a decree cannot be resorted to, as a measure to provide a basis for remand. The task of an Appellate Court in remanding a case, under Rule 23-A, is more complicated, when compared to the disposal of an appeal, or remanding the case under Rule 23, on merits. The reason is that, in addition to expressing the views on merits, it should lay necessary foundation for retrial of the case. 12. Even while examining the question, as to whether the matter needs retrial, the Appellate Court is required to confine its consideration to the evidence on record, and to the points, that have fallen for consideration in the suit. Fresh case cannot be permitted to be pleaded at the stage of appeal. In Karpagathachi v. Nagarathinathachi1, the Supreme Court held as under: "Para 4:...In the High Court, the appellants raised the contention for the first time that the two partition lists were required to be registered. The point could not be decided without further investigation into questions of fact, and in the circumstances, the High Court rightly ruled that this new contention could not be raised for the first time in appeal. We think that the appellants ought not to be allowed to raise this new contention". Where an appellant makes out a case for receiving additional evidence, an exercise is to be undertaken under Rule 27, than under Rule 23-A of Order XLI C.P.C. 13. Reverting to the facts of the case, the lower Appellate Court totally agreed with the findings of the trial Court, that the respondent herein failed to prove his claim against the appellant. In para-15 of the judgment, the lower Appellate Court observed as under: Para-15: "The burden is on the plaintiff to prove the suit transactions and it has to let in evidence to support its claim. But, in this case, there is any amount of paucity of evidence to support its claim". In para-15 of the judgment, the lower Appellate Court observed as under: Para-15: "The burden is on the plaintiff to prove the suit transactions and it has to let in evidence to support its claim. But, in this case, there is any amount of paucity of evidence to support its claim". Elsewhere, it observed; "...The evidence of PW-1 does not substantially prove that he witnessed the transaction entertained in between plaintiff and defendant and he is not part of the plaintiff firm..." "...It comes as to, the trial court have correctly concluded that the plaintiff have miserably failed to make case..." 14. These findings were sufficient for dismissal of the appeal. The respondent did not file any application under Rule 27 of Order XLIII of C.P.C., to receive additional evidence. Not a single infirmity was pointed out in the judgment of the trial Court, much less, the findings recorded by it, were reversed. However, the lower Appellate Court has directed remand of the matter to the trial Court, with the following reasons: "...The material piece of evidence placed upon by the plaintiff before this court made out a case only to the extent as to that there was some transaction entertained in between plaintiff and defendant. Since the defendant admitted with regard to the previous transaction entertained between defendant and plaintiff it cannot be deemed as to that the defendant continue to have the transaction with the plaintiff and became liable to suit amount. At this stage, without giving opportunity to the plaintiff have pass any judgment though the counsel for the plaintiff/appellant represented that an opportunity may be given injustice may be caused to the plaintiff..." 15. Lack of clarity and cohesion in the observations apart, the fact remains that the respondent did not file any application under Rule 27 of Order XLIII of C.P.C., before the Appellate Court, nor did he complain, that his efforts to adduce any other evidence was scuttled by the trial Court. However, the lower Appellate Court, even while trying to sustain the conclusions arrived at by the trial Court, had come forward with the suggestions, as to what the respondent herein ought to have done, as under: "Para-10: ...The plaintiff should have lead proper basis to accept its claim and production of such documents would have certainly assisted it, to corroborate its version. Even otherwise, the plaintiff could have summoned necessary records from the Commercial Tax Authorities, or the Income Tax Authorities to prove the transactions between it and the defendant. In the course of cross- examination, DW-1 admitted that he maintained a stock register in respect of the purchasers and stock received by him and that he was also issuing bills by maintaining bill books, whenever he was selling the products. But, he stated that he did not maintain a daily cash register nor for the purpose of sales tax and income tax. But, his evidence disclosed that he had an annual turn-over of Rs.5,00,000/- to Rs.6,00,000/-. In such circumstances, it is difficult to believe his version, that he did not maintain such record. He ought to have been assessed for income tax and sales tax and even otherwise, he should have disclosed that the plaintiff is one of its distributors, in respect of Rules made thereunder, during relevant period. In the absence of it, the evidence produced by the plaintiff, cannot be treated as sufficient to prove the plaintiffs claim". 16. If the respondent had pursued a particular line before the trial Court, it was not for the Appellate Court to assess as to how far it was appropriate. The cumulative effect of the above discussion is, that the lower Appellate Court did not follow the true spirit of Rule 23-A of Order XLI C.P.C., while directing remand of the matter. It must not be forgotten that the adjudication, by a Court, gives rise to valuable rights to the parties, and they cannot be unsettled without proper basis. This Court is satisfied that the judgment and decree passed by the lower Appellate Court cannot be sustained in law. However, final pronouncement on merits becomes difficult in a matter arising under Order XLIII, Rule 1(u) of C.P.C. If the order of remand is found not sustainable, the matter has to go back to the same Appellate Court for disposal, according to law, since it was not decided finally, on merits. 17. Hence, the C.M.A. is allowed, and the order under appeal is set aside. The lower Appellate Court is directed to decide the matter, on merits, afresh. 18. There shall be no order as to costs. ?