JUDGMENT 1. - This civil misc. appeal challenges the order dated 18.12.2013, passed by the Additional District Judge, Bari, District Dholpur whereby the appellate court in an appeal under Section 96 CPC against an judgment and decree dated 15.05.2013, passed by the Civil Judge, Jr. Division, Bari in Civil Suit No.59/2004 has set aside the judgment and decree and remanded the matter to the trial court for reconsideration and retrial. 2. The brief facts of the case are that the plaintiff-appellant (hereinafter 'the plaintiff') filed a suit for eviction / possession and arrears of rent against the defendant-respondent (hereinafter 'the defendant') based on Section 106 of the Transfer of Property Act, 1882 (hereinafter 'the Act of 1882')- the Rajasthan Rent Control Act, 2001 not being operative at least at the relevant time in Bari, District Dholpur. It was averred that the defendant was a tenant in the suit shop @ Rs. 50 p.m. and was in arrears for the last several months immediately prior to the filing of the suit. It was stated that the plaintiff, a Doctor earlier in the employment of Government of Rajasthan, had superannuated effective 31.01.2004 and required the suit shop of which the defendant was the tenant for his own personal use. It was stated that a legal notice as required under Section 106 of the Act of 1882 was served on the defendant terminating his tenancy effective 05.03.2004. Yet even subsequent to the termination of the tenancy, the defendant continued to unauthorisedly occupy the suit shop and was not vacating it. It was stated that the defendant had been rendered a mere trespasser in the suit shop pursuant to the termination of his tenancy under notice under Section 106 of the Act of 1882 and therefore he be evicted from suit shop and possession thereof be handed over to the plaintiff. A decree of rent for the period prior to the termination of tenancy and thereafter subsequent to termination for mesne profits was also prayed for. The defendant filed his written statement of denial. However in para 1 of the written statement the defendant admitted to the factum of his tenancy with the plaintiff as the landlord of the suit shop. It was however prayed for defences otherwise taken that the suit was liable to be dismissed. 3. On the pleadings of the parties, the trial court framed five issues. However in para 1 of the written statement the defendant admitted to the factum of his tenancy with the plaintiff as the landlord of the suit shop. It was however prayed for defences otherwise taken that the suit was liable to be dismissed. 3. On the pleadings of the parties, the trial court framed five issues. Evidences were laid by the parties on the said issues and their witnesses examined. In the course of proceedings, a compromise in the said suit was first arrived at and a decree in terms thereof passed on 13.09.2007. The said compromise decree however was appealed against by the defendant on the ground that the compromise was fraudulently obtained. Thereupon the lower appellate court vide its order dated 20.10.2008 set aside the judgment and decree dated 13.09.2007 and remanded the case to the trial court for trial afresh and adjudication on the merits of the suit. 4. The trial court subsequent to the remand by the lower appellate court reconsidered the matter, conducted a retrial as directed and again passed judgment and decree dated 15.05.2013 for the plaintiff and directed the defendant to handover the peaceful possession of the suit shop to the plaintiff within a period of two months from the date of decree as also pay to the plaintiff arrears of rent @ Rs. 50/- p.m. for the period commencing 03.08.2001 to 05.03.2004 and thereafter w.e.f. 05.03.2004 mesne profit at the same rate till the date of handing over the possession of the suit shop to the plaintiff. 5. The matter however was not to rest. The defendant again invoked Section 96 CPC to challenge the judgment and decree dated 15.05.2013. The appeal was filed before the Additional District Judge, Dholpur but however was transferred to the court of the Additional District Judge, Bari which in the meantime had acquired jurisdiction over the area within which the dispute between the plaintiff and the defendant has arisen. Vide order dated 18.12.2013, the Additional District Judge, Bari as the lower appellate court hearing the appeal against the judgment and decree dated 15.05.2013 set aside the impugned judgment and decree and again remanded the matter to the trial court for reconsideration and retrial. The plaintiff is aggrieved of the order dated 18.12.2013, passed by the lower appellate court. Hence this civil misc. appeal. 6. Mr. The plaintiff is aggrieved of the order dated 18.12.2013, passed by the lower appellate court. Hence this civil misc. appeal. 6. Mr. D.K. Garg, appearing for the plaintiff, submitted that an order of remand cannot be casually passed by an appellate court and the power is limited to situations set out in Order 41 Rules 23, 23A & 25 CPC. It was submitted that the impugned order dated 18.12.2013 does not satisfy any of the conditions in any of the aforesaid Rules of Order 41 CPC and in fact is a garbled order without any clarity primarily remanding the matter to the trial court on an issue at which the parties were not in dispute i.e. with regard to the landlord tenant relationship between the plaintiff and the defendant. It was submitted that the lower appellate court has remanded the case to the trial court on the ground that the rent-deed had not been placed on record in the absence whereof the landlord tenant relationship had not been established before the trial court and neither any issue in respect thereof had been framed, nor any evidence led thereon. It was submitted that the defendant in his written statement himself had specifically admitted that he was tenant of the plaintiff in the suit shop. In view of the admission so made, the question of framing of an issue on the question of landlord tenant relationship between the plaintiff and the defendant was a non-sequitur. Counsel submitted that an issue is to be framed only where a party asserts a fact and the other denies it. Such a situation did not obtain in the instant case before the trial court in view of the admitted tenancy of the defendant. There thus being no issue as to whether the defendant was the tenant of the plaintiff, no evidence in respect thereof was required. It was submitted that in fact the defendant in his statement before the trial court had also admitted that he was the tenant of the plaintiff in the suit shop. The remand of the matter purportedly for determination of the landlord tenant relationship between the plaintiff and the defendant was therefore completely misdirected and a misuse of the powers of the lower appellate court to remand matters to the trial court for trial afresh. 7. Mr. The remand of the matter purportedly for determination of the landlord tenant relationship between the plaintiff and the defendant was therefore completely misdirected and a misuse of the powers of the lower appellate court to remand matters to the trial court for trial afresh. 7. Mr. Sudesh Bansal, appearing for the defendant, raised a preliminary objection with regard to the maintainability of the appeal. He submitted that the order dated 18.12.2013, impugned in this appeal, is not an order falling either under Order 41, Rule 23 CPC or for that matter under Order 41, Rule 23A CPC. Instead the order impugned is an order of limited remand under Order 41, Rule 25 CPC for the purpose of framing an issue pertaining to the landlord tenant relationship between the plaintiff and the defendant and taking evidence thereon for determination of the dispute between the parties. He contended that a civil misc. appeal under Order 43, Rule 1 (u) CPC as filed before this Court was thus not maintainable. Mr. Bansal has also supported, albeit faintly, the impugned order on merits and prayed that it be upheld. 8. Heard. Considered. 9. For a limited remand under Order 41, Rule 25 CPC, it is essential that an appellate court should find that the court below had omitted to frame or try an issue or determine question of fact essential for the right decision of the suit upon its merits and in the event of such a finding, the superior court is to frame an issue and refer the same for trial to the court from whose decree the appeal has been preferred and direct the trial court to take requisite additional evidence. Thereupon the trial court would be under an obligation to try the issue as directed by the appellate court to be determined on the basis of evidence taken and which had in the first instance escaped the notice of the trial court. 10. A reading of the impugned order dated 18.12.2013 does not indicate that the pre-conditions for invoking of Order 41, Rule 25 CPC were made out in the present case. As argued by the counsel for the plaintiff, the defendant admitted in his written statement to the tenancy of the plaintiff in the suit for eviction / possession. Similarly an admission was made in the course of the defendant's evidence in the court. As argued by the counsel for the plaintiff, the defendant admitted in his written statement to the tenancy of the plaintiff in the suit for eviction / possession. Similarly an admission was made in the course of the defendant's evidence in the court. The question of tenancy of the defendant was thus not in issue before the trial court in view of the admission aforesaid. The lower appellate court therefore in these circumstances completely misdirected itself in focusing on the purported omission of the trial court in framing an issue with regard to the tenancy of the defendant qua the plaintiff as landlord. A further reading of the impugned order dated 18.12.2013 indicates that the order purporting to only partially allow the appeal has in fact directed retrial of the case for all practical purpose. The impugned order substantively therefore would be a one under Order 41, Rule 23A CPC where the court reverses the decree in appeal and directs retrial. That is subject to a challenge in a civil misc. appeal. In the aforesaid context, it is for this Court to see as to whether the direction for a retrial as made by the lower appellate court is legal and valid in the facts of the case. 11. The dispute between the plaintiff and the defendant was with regard to the termination of the tenancy by resort to a notice under Section 106 of the Act of 1882. The tenancy has been admitted by the defendant in his written statement as also in his evidence before the trial court. All evidence essential for the adjudication of the suit for eviction / possession / mesne profit based on a notice under Section 106 of the Act of 1882 in these circumstances was before the trial court and had reckoned for the purpose of the passing of the judgment and decree of eviction / possession against the defendant. The defendant had no doubt a statutory right under Section 96 CPC to carry the judgment and decree dated 15.05.2013, passed by the trial court in appeal. It was then for the lower appellate court to consider the appeal on its own merits and there was nothing obstructing the lower appellate court from so doing on the basis of evidence before the trial court. It was then for the lower appellate court to consider the appeal on its own merits and there was nothing obstructing the lower appellate court from so doing on the basis of evidence before the trial court. No doubt retaining its jurisdiction, if the facts warranted for reasons of perversity or illegality in the impugned judgment and decree passed by the trial court, to set it aside. As far as the pending application under Order 11 Rules 12 and 14 CPC filed by the defendant is concerned I am of the considered view that it was the obligation of the defendant to have brought the said application to the notice of the trial court and sought its adjudication. Applications filed in the course of civil suits not pursued by the applicant, cannot be taken advantage of. It has not been argued that the pending application under Order 11 Rules 12 and 14 CPC was brought to the notice of the trial court and yet not decided. The Court is not an arena for strategising. It is a place for adjudication of disputes fair and square. Further in my considered view in the admitted fact of tenancy of the defendant, non-address of the application under Order 11 Rules 12 and 14 CPC seeking filing of the tenancy agreement purportedly in the possession of the landlord was of no event and only an exercise in futility intent upon delaying the adjudication of the suit before the trial court. I therefore find that no ground for remand of the matter by the lower appellate court to the trial court was made out on this count. The remand under the impugned order 18.12.2013, to my mind, was thus absolutely unwarranted, unjustified and had the effect of prejudicing the plaintiff by delay in the final adjudication of the suit properly conducted before the trial court. 12. The appeal is therefore allowed. The impugned order dated 18.12.2013, passed by the Additional District Judge, Bari is set aside. The appeal by the defendant on the board of the Additional District Judge, Bari against the judgment and decree dated 15.05.2013 would consequently stand revived to its original number. The learned Additional District Judge, Bari is directed to dispose of the appeal on its own merits in accordance with law. The appeal by the defendant on the board of the Additional District Judge, Bari against the judgment and decree dated 15.05.2013 would consequently stand revived to its original number. The learned Additional District Judge, Bari is directed to dispose of the appeal on its own merits in accordance with law. It is however made clear that the Additional District Judge, Bari shall not be influenced by any observations made in this order while so doing.Appeal allowed. *******