JUDGMENT : Being aggrieved by the judgment of remand dated 21-12-2010 passed by the First Additional District Judge, Sagar in Civil Appeal No. 8-A/2010, this appeal under Order 43, Rule l(u) of the Code of Civil Procedure has been preferred by the defendants. 2. It is not in dispute that the plaintiff was having Plot No. 7, Block No. 57 in Civil Lines, Sagar. In the northern side thereof there is a culvert and in southern side 10 feet road is there. It is also not in dispute that defendants are lease holder of 750 sq. ft. of land on which his old house is situated. It is also not in dispute that defendants want to raise construction on the said plot after seeking permission from the Municipal Corporation. It is said in plaint that Plot No. 7, Block No. 57 as indicated in the map ad-measuring 37 feet from northern to southern side, in eastern side 67 feet and in western side 59 feet, total area is 2331 sq. ft. situated in Civil Lines, Sagar, The said plot was purchased by the plaintiff from Itwarilal son of Natthulal Mehtar vide registered sale deed dated 10-2-1992 and their name is recorded in the revenue papers and Corporation. It is said that in the northern side of the said plot about 6 feet broad culvert is there, in southern side 10 foot road, in eastern side plot of Pancham is there and in western side house of Parmanand is situated after 9 feet of the road. Adjacent to the plot in eastern side 5 feet road towards northern side which is adjacent to Sagar-Jabalpur Main Road and in western side 10 feet wide road attached to Sagar-Jabalpur road which is a way of use. As per the map attached to the plaint indicated by green hedges right to enjoyment is there. If the defendants are allowed to raise construction, the right of enjoyment will come to an end. It is further said that after seeking permission construction has been raised on about 200 sq. ft. of land for which mandatory injunction may be issued and on the land of 6 feet the defendants be restrained to not to interfere in right to use of the land of plaintiff. 3. It is further said that after seeking permission construction has been raised on about 200 sq. ft. of land for which mandatory injunction may be issued and on the land of 6 feet the defendants be restrained to not to interfere in right to use of the land of plaintiff. 3. Defendants by filing written statement have denied the plaint allegations and it is said that the plaintiff has not purchased the land from Itwarilal. In fact the original lease holder of the land was Rana Kunjar, however, Itwarilal has sold more than the land acquired by him from Rana Kunjar. In such circumstances the plaintiff is not the real owner of the land as purchased vide registered sale deed from Itwarilal, It is admitted that in northern side and southern side 10 feet way is there. In eastern side plot of Panchamlal has been denied. The way of 5 feet and 10 feet towards northern side and southern side joining Sagar-Jabalpur road has also been denied. It is stated that the plaintiff has encroached upon 50 feet of land in northern and southern sides while executing sale deed extra to the said plot 17 feet land has been encroached upon. It is said that the defendants were in possession of 17 feet of the land since lifetime of their father and whereupon they are having peaceful possession. It is further said that after seeking permission from the Municipal Corporation they are raising construction on plot and the plaintiff is not entitled to seek temporary or mandatory injunction, if any. In additional pleas it is stated that as per documents filed by the plaintiff for purchasing the lands by Itwarilal from Rana Kunjar, in the said document measurement has been shown northern to southern side 50 feet and from eastern to western 37 feet. The boundaries of the sale deed executed in favour of plaintiff by Itwarilal, the said area has been shown towards southern side 57 feet and from western-southern side 59 feet which is more than the leased area granted by original lease holder Rana Kunjar. In view of the aforesaid facts it is urged that the plaintiff is not entitled to claim any injunction. 4. In view of the aforesaid facts it is urged that the plaintiff is not entitled to claim any injunction. 4. The trial Court dismissed the suit filed by the plaintiff and on filing an appeal lower Appellate Court referring the oral evidence in paras 14 and 15 and thereafter from para 16 referring the documentary evidence up-to para 19 drawn the conclusion which may not be reasonably possible to draw and thereafter considering the application filed by the plaintiff-appellant as well as of the defendants filed before the trial Court directed for appointment of the Commissioner and further directed for remand of the case for decision by trial Court. 5. Shri Ravish Agrawal, learned senior counsel appearing on behalf of the defendants contended that as per Order 41, Rule 24 of Civil Procedure Code if the evidence on the record is sufficient to enable the Appellate Court to pronounce judgment, the Court after resettling the issue may finally determine the suit. In the present case on the basis of the material, the documents and on its appreciation not drew any conclusion by Appellate Court that on the basis of those evidence issue cannot be decided without having the report of the Commissioner or expert. In such circumstances merely after referring the evidence consideration of the issue of appointment of the Commissioner is not as per the scheme of the Code of Civil Procedure while directing remand in routine. In such circumstances the lower Appellate Court committed error of law to remand the case in appeal filed by the plaintiff keeping the finding of the trial Court set at naught without appreciating the evidence and assigning the reason why the remand is necessary. In such circumstances recourse so taken by the lower Appellate Court is not permissible. Reliance has been placed on a judgment of Hon'ble the Apex Court in the case of Rajinder Sharma vs. Arpanet Sharma, reported in AIR 2011 SC 3161 . 6. Per contra, Shri Sajidulla Khan, learned counsel appearing on behalf of the respondent contends that looking to the controversy as involved in the case, on filing an application by the plaintiff-appellant if the lower Appellate Court was satisfied to remand the matter, in such circumstances order impugned has rightly been passed after recording such satisfaction. 6. Per contra, Shri Sajidulla Khan, learned counsel appearing on behalf of the respondent contends that looking to the controversy as involved in the case, on filing an application by the plaintiff-appellant if the lower Appellate Court was satisfied to remand the matter, in such circumstances order impugned has rightly been passed after recording such satisfaction. In that view of the matter order impugned passed by the lower Appellate Court may be upheld and the trial Court has rightly directed to decide the issue after remand. 7. After hearing learned counsel appearing on behalf of the parties and on perusal of the record it is apparent that the plaintiff has filed the suit seeking injunction and mandatory injunction for enforcement of the easementary right and claiming such relief. It is not in dispute that the defendants are lease holder of 750 sq. ft. of land whereupon their house is situated and now after seeking permission from the Municipal Corporation they are raising the construction of the house. In the written statement filed by the defendants it has been specifically pleaded that the plot of the plaintiff as indicated is of the area purchased from original holder Rana Kunjar. Specific averment to that effect has been made in the written statement indicating the area of lease granted by Rana Kunjar to Itwarilal and he in his turn executed the sale deed in favour of the plaintiff more than the area granted by the original holder Rana Kunjar, however plaintiff has encroached upon the land as shown in plaint indicating for use of way. The trial Court in such circumstance dismissed the suit. It is relevant to note here that before the trial Court defendants have applied for appointment of the Commissioner, but on raising objection by plaintiff the said application was rejected by the trial Court. But after passing the judgment by the trial Court and on filing the appeal the application for appointment of Commissioner was filed by the plaintiff in appeal which was allowed by the lower Appellate Court and remand has been directed by order impugned. But after passing the judgment by the trial Court and on filing the appeal the application for appointment of Commissioner was filed by the plaintiff in appeal which was allowed by the lower Appellate Court and remand has been directed by order impugned. In fact the land whereupon the right to way was shown by the plaintiff do not get alienated by the original holder Rana Kunjar to Itwarilal in excess to the area of lease transferred the same to plaintiff, therefore the plaintiff is the encroacher on the said land and right to use cannot be claimed thereupon as found by the trial Court while dismissing the suit. In such circumstances it is to be examined whether lower Appellate Court has rightly directed for remand by appointment of Commissioner and to decide the suit afresh by the trial Court? 8. On filing an appeal Appellate Court may confer with the power to remand the case. It is experienced that the lower Appellate Court in the appeals in routine way directing remand of the case for decision by the trial Court. Thus, to rule out the clouds and for the guidance under what circumstances the remand can be directed is necessarily required to discuss individual rules specifying contingencies in which the remand may be permissible. 9. As per Rule 23 in case if the suit has been decided upon preliminary point and on filing an appeal against the said judgment if Appellate Court reversed such decree and on found fit remand the case by issuing a direction that the issue or issues shall be tried by the Court, on the basis of evidence if not recorded during the original trial or to record the evidence during the trial after remand subject to just exceptions. While issuing such directions sending a copy of the judgment to the Court whose decree has been reversed it be directed that the suit be re-admitted under its original number in the register of the civil suit. By Act No. 104 of 1976 an amendment has been inserted with effect from 1-2-1977 in the Code of Civil Procedure by rule 23-A describing the remand in other cases. By Act No. 104 of 1976 an amendment has been inserted with effect from 1-2-1977 in the Code of Civil Procedure by rule 23-A describing the remand in other cases. If the suit has been decided other than preliminary issue and on filing an appeal the Appellate Court reversed the decree and found that re-trial appears to be necessary in such circumstances the Court may have similar power as enumerated under Rule 23 and described hereinabove. 10. As per Rule 25 if the Appellate Court before whom an appeal against the judgment of the trial Court has been preferred is of the opinion that the trial Court has omitted to frame or try any issue which was necessary for determination of any question of fact essentially required to right decision of the suit on merit then after framing the issues it may be referred to the trial Court and may direct to take additional evidence required for it on such remand. Thereupon the trial Court shall proceed to try such issue on recording the evidence thereafter together with finding thereon and the reasons therefor and shall return it to the Appellate Court within the time so fixed or extended by Court time to time. As per Rule 26 on receiving evidence and findings, it shall form a part of the appeal and the Appellate Court may within the time specified ask for the objections on such findings from the parties before it specifying the time limit. After expiration of the said period of presenting such memorandum of objection, the Appellate Court shall proceed to determine the appeal on merit. 11. As per Rule 27 it is clear that if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to be admitted or the party seeks to produce additional evidence indicating that in exercise of due diligence it was not in his knowledge or after exercise of due diligence could not be produced at the time when the impugned decree was passed or in any case if the Appellate Court is of the opinion that for determination of the issue any document, any witness is to be examined to enable him to pronounce the judgment or having some other substantial cause may direct to allow such evidence or document to be taken on record or to direct to examine the witness. The Appellate Court may do so by recording reason to admit such evidence. In such contingencies the Appellate Court may either take such evidence by its own or may direct the Court from whose decree the appeal is preferred or to any other subordinate Court to take such evidence and to send it to the Appellate Court thereafter. The caution has been taken that whether additional evidence has been allowed to be taken on record the Appellate Court shall specify the points to which the evidence is to be confined and to record it on proceedings specifying the points. It is made clear here that if the Appellate Court is of the opinion that on allowing the additional evidence to take on record and without its proof after taking objection from other side on the admissibility and its proof the case may be decided on merit. By all the times the remand on taking the additional evidence is not necessary. 12. As per Rule 24 it is apparent that if sufficient evidence is available on record to enable the Appellate Court to pronounce the judgment then on resettling the issues if required the suit may be finally decided determining those issues by the Appellate Court on found the grounds taken by it other than the grounds taken in a judgment by the trial Court while passing the decree on found in judgment of appeal. 13. Under the Scheme of the Act under Rule 24 the exception has been carved out whereby if any of the issue has not been properly decided by the trial Court to which the sufficient evidence, material is available on record to enable the Appellate Court to pronounce the judgment on merit then after re-settling to the issues if any required the suit may be decided finally determining those issues by the Appellate Court. Thereby it is clear that if on the basis of the material the appeal may be decided determining all the issues by the Appellate Court the remand should not be directed. 14. In view of the foregoing, four contingencies are available to direct the remand by Appellate Court as specified herein above otherwise the remand is not permissible, in the said context the judgment of remand directed by the Appellate Court by order impugned is required to be examined. 14. In view of the foregoing, four contingencies are available to direct the remand by Appellate Court as specified herein above otherwise the remand is not permissible, in the said context the judgment of remand directed by the Appellate Court by order impugned is required to be examined. In the facts of the present case and on perusal of the order impugned passed by the lower Appellate Court it is apparent that in para 14 oral evidence of the plaintiff is referred while in para 15 the oral evidence of the defendants has been referred. In para 16 the documentary evidence of the plaintiff and in para 17 the documentary evidence of the defendants has been referred. In para 18 the argument advanced by the counsel for the plaintiff has been taken note, thereafter in para 19 the finding has been recorded that the appointment of the commissioner would be necessary for the purpose of elucidating the matter in dispute. Thereafter in para 20 it was observed that the application for appointment of the Commissioner was moved before the trial Court by the defendants. In paras 21 and 22 the argument for appointment of Commissioner of the parties has been referred. In para 23 dealing with the application for appointment of the Commissioner to bring the factual position on record regarding construction, to elucidate that whether way of the plaintiff would be affected has been directed to be inspected through Sub-Engineer or the Engineer of the Corporation. It has further been directed that after giving an opportunity to lead the evidence and cross-examine the suit be decided afresh. 15. In view of the aforementioned legal position and looking to the findings recorded by the trial Court as well as the lower Appellate Court it is not clear under what circumstances remand has been directed. The lower Appellate Court has not recorded a finding that in the facts of the case re-trial is necessary, however the Court has exercised the power as conferred under Rule 23. The lower Appellate Court has not also arrived at a conclusion that the evidence brought before him is not sufficient to pronounce the judgment, however the Commissioner's report would be necessary. The lower Appellate Court has not also arrived at a conclusion that the evidence brought before him is not sufficient to pronounce the judgment, however the Commissioner's report would be necessary. It has also not been observed that the trial Court has omitted or try or to frame any issue which is necessary to determine the fact in question, however directed remand on certain issues inviting objections thereupon with a finding of the trial Court the action is to be taken by the Appellate Court in a specified time. It is also not a case where document or evidence has been produced before the lower Appellate Court which is taken on record and thereupon the remand appears to be necessary. In absence of having the contingencies specified and discussed hereinabove the remand cannot be directed. It is to be observed here that the Appellate Court while remanding the case is duty bound to record a finding under which clause the remand is directed. It can safely be observed that if the Appellate Court was of the opinion that the dispute regarding boundary is there, to resolve it application for appointment of the Commissioner has been filed by the plaintiff/appellant before him then by allowing such application the Commissioner's report may be called for by the Appellate Court itself. On the said report the objections may be invited from the other side. Thereafter if the Appellate Court was of the opinion that on the basis of the material available on record and even after calling of the Commissioner's report the decision on merit is not possible and the re-trial is necessary then by recording a finding the remand may be directed by the Appellate Court. Otherwise also after calling of the Commissioner's report and on going through it and the issues framed by the trial Court or issues for determination, if the Appellate Court finds that the decision after Commissioner's report is not possible and on any of the issues, then the recourse as permissible under Rule 25 of Order 41 may be taken by him. In the present case, without observing any of the contingencies the remand has been directed. Thus in the considered opinion of this Court the remand as directed by the Court is not permissible, however the order impugned is hereby set aside. 16. In the present case, without observing any of the contingencies the remand has been directed. Thus in the considered opinion of this Court the remand as directed by the Court is not permissible, however the order impugned is hereby set aside. 16. Accordingly the appeal is hereby allowed and the judgment passed by the lower Appellate Court stands set aside. The lower Appellate Court is directed to decide the appeal afresh. It is made clear here that if the Court is of the opinion that appointment of the Commissioner is necessary in the facts of the case, then by recording a finding specifying contingencies wherein remand is necessitated appropriate orders may be passed otherwise taking the recourse as observed hereinabove the lower Appellate Court may pass appropriate orders. It is further made clear that this Court has not expressed any opinion on the merit of the case and the judgment of remand has only been examined, however, the Appellate Court may pass appropriate orders after affording an opportunity of hearing to both the sides. 17. It is made clear here that for future while directing remand by the lower Appellate Court certain guidelines are required to be observed while passing judgment and order directing remand. It is directed that the lower Appellate Courts in the State shall observe the contingencies in which remand is permissible otherwise the appeals be decided on merit. The contingencies wherein remand can be directed is observed as thus : (1) If the suit has been decided on a preliminary issue and the decree is reversed by Appellate Court then while passing the order of remand the Appellate Court may direct to try the issue or issues after taking the evidence already on record or after the remand, if any, on restoring the suit to its original number. (2) If an appeal is preferred against the judgment and decree passed by the trial Court other than the preliminary issue and Appellate Court reversed such finding in appeal and further found that re-trial is necessary then by recording such finding the power as specified in clause (1) may be exercised by the Court directing wholesale remand. (2) If an appeal is preferred against the judgment and decree passed by the trial Court other than the preliminary issue and Appellate Court reversed such finding in appeal and further found that re-trial is necessary then by recording such finding the power as specified in clause (1) may be exercised by the Court directing wholesale remand. (3) If the Appellate Court found from the decree against which an appeal is preferred the trial Court has omitted to frame or try any issue or to determine the question of fact which appears essential to right decision of the suit on merit, then the Appellate Court may frame issues and refer the same for trial to the Court from whose decree the appeal is preferred directing to take additional evidence if required. The Appellate Court shall further direct that after trying the said issue the evidence be returned to it with a finding and reasons therefor. In such contingencies the time to return back the evidence and the finding ought to be fixed by the Appellate Court. Thereafter the Appellate Court after inviting objections may determine the appeal on merit. (4) On production of the additional evidence and after taking them on record, if the Appellate Court is satisfied to take some witness to prove the document then the remand may be directed for taking such evidence or witness on record specifying the points for it. On taking additional evidence on record by all the times the remand is not necessary if the document is admissible in evidence and not objected by other side, the Court may pass the order on merit deciding the appeal. (5) It is to be made clear here that if the evidence on record is sufficient to enable the Court to pronounce the judgment alter re-settling the issue, the Appellate Court should not remand in routine and the appeals must be decided on merit. (6) If the Appellate Court is of the opinion to direct for remand in any of the contingencies as specified hereinabove under clause (1) to (4), it is the duty of the Court to fix the date for appearance of the parties before the trial Court with a view to curtail (he delay on directing such remand and if the remand in the above clause (3) findings be also called within the time specified. Order accordingly.