JUDGMENT S M Modak, J. - The trial Court decreed the suit, it was for declaration as to ownership of land on the basis of adverse possession. Defendant though appeared has not contested the suit by filing written statement. When she went in appeal, she partially succeeded before the First Appellate Court. Though she was not successful in getting a decree for dismissal of the suit, she succeeded in getting remand order from the First Appellate Court. First Appellate Court permitted her to file written statement. There was a direction to the trial Court to decide the matter afresh. 2. The plaintiffs who were having a decree of the trial Court in their favour, were dissatisfied with the order of remand and that is how they are before this Court. The first appellate Court remanded the matter mainly on following three reasons :- (a) the suit in question was special civil suit no. 142 of 2008. Whereas earlier to that there was civil suit no. 469 of 2006. The First Appellate Court observed "in view of the common subject matter, latterly instituted a suit ought to have been stayed." (b) The pleadings of the plaintiff on the point of adverse possession were insufficient. (c) The defendant ought not to have been given liberty to file written statement (though it was observed that procedure prior to proceeding without written statement was perfectly followed.) 3. Learned advocate Shri Sharma and Shri Kshirsagar argued for plaintiff and defendant respectively. Learned Advocate Shri Sharma emphasized following points:- (a) Subject matter of two suits are totally different. (b) There are averments and evidence as to theory of adverse possession (c) There was no prayer for grant of permission to file written statement and there was findings of the First Appellate Court that the procedure prior to proceeding without written statement was perfectly followed. Though permission was granted to file written statement. 4. He relied upon the following judgments on the point of adherance to time limit for filing its written statement its consequence if not filed. (1) Fountainhead Promotions and Events Limited Vs. Gitanjali Lifestyle Limited, (2014) 1 MhLJ 468 , (2) Gauri Shankar Vs. Hindustan Trust Private Limited, (1972) AIR SC 2091 and (3) Ramchandra Nathu Ghadage and ors. Vrs. Rajaram Nathu Ghadage since deceased by his Lrs and ors, (2008) 2 MhLJ 754 . 5. (1) Fountainhead Promotions and Events Limited Vs. Gitanjali Lifestyle Limited, (2014) 1 MhLJ 468 , (2) Gauri Shankar Vs. Hindustan Trust Private Limited, (1972) AIR SC 2091 and (3) Ramchandra Nathu Ghadage and ors. Vrs. Rajaram Nathu Ghadage since deceased by his Lrs and ors, (2008) 2 MhLJ 754 . 5. On the point of prohibition to grant relief if there is no pleading and prayer he relied upon following judgments. (1) Mohd. Yusuf Vs. Faij Mohammad and Ors., (2009) 2 AllMR 486 and (2) Saraswati Gurushantayaa Swami Vs. Sulbha Malappa Chinchole and Ors, (2012) 2 MhLJ 160 6. On the point of restraint on the First Appellate Court to remand the matter, he relied upon following judgments. (1) Santosh Hazari Vs. Purushottam Tiwari deceased by L.Rs., (2001) 2 MhLJ 786 and (2) Bacchaj Nahar P Vs. Nilima Mandal and Anr., (2009) AIR SC 1103 . 7. Whereas the learned advocate for the respondent supported the impugned judgment. According to him in the interest of justice, the order of remand is perfectly legal and considering the contentious issue relating to property, full-fledged trial is required. He relied upon the case of C.N.Ramappa Gowda Vs. C.C. Chandregowda (Dead) by L.Rs and others, (2012) AIR SC 2528 and Ashok Kundalrai Mohekar Vs. The National Textile Corporation and another, (2015) 4 BCR 494 . SUBSTANTIAL QUESTIONS OF LAW 8. While admitting the appeal, certain substantial questions of law were framed. It pertains to "permitting the defendant to file written statement even though there is no prayer to that effect". It pertains to "there was need to stay the present suit of 2008 in view of pendency of 2006 suit." It pertains to "whether remand order was right". 9. While arguing, learned Advocate Shri Sharma also argued about the approach of the first appellate Court. His emphasis was even though there was no written statement, the first appellate Court has opined about lacunae in the evidence and in the pleadings of the plaintiffs about adverse possession. It is true that on this issue question of law remained to be framed. I have gone through the memo of appeal filed before first appellate Court. I find reference to that effect. Learned Advocate Shri Kshirsagar also supported that finding. It is true that on this issue question of law remained to be framed. I have gone through the memo of appeal filed before first appellate Court. I find reference to that effect. Learned Advocate Shri Kshirsagar also supported that finding. Accordingly, I have decided to take up the issue about the approach of the trial Court to opine about insufficiency of evidence in spite of the fact that there was no written statement. STAY OF PRESENT 2008 SUIT 10. According to the defendant, the 2008 suit ought to have been stayed in view of the pendency of 2006 suit in between the same parties. This ground was taken in the memo of appeal before the first appellate Court. There is no dispute that 2006 suit is/was going on amongst these parties. It was filed by these appellants and respondent and Corporation are party defendants. Learned Advocate Shri Sharma tried his best to demonstrate how the subject matter of that suit and the reliefs claimed in both the suits are different. I am restraining myself to opine on the issue of the stay of 2008 suit. 11. The learned First Appellate Court has taken assistance of reference of 2006 suit as pleaded in paragraph 9 of the plaint. I am not expressing any comment on merits of the said claim simply for the reason that these findings were given merely by taking a clue from ground agitated in memo of the appeal. This issue was not taken up by the trial Court probably for the reason that defendant has not appeared. But I think for giving an opinion on this issue certain procedure needs to be followed. Merely taking a ground in the memo of appeal cannot be said to be the proper procedure. Before staying latter suit, the ingredients of Section 10 of the C.P.C. need to be satisfied. This can be done only after hearing the parties. I think when trial Court has not given any finding on this issue, it was not proper on the part of first appellate Court to take up this issue and consider it as a lapse on the part of the trial Court and take it as one of the grounds for setting aside the decree. INSUFFICIENCY OF EVIDENCE ABOUT ADVERSE POSSESSION 12. No doubt it is true that the decree was passed ex-parte without there being written statement on record. INSUFFICIENCY OF EVIDENCE ABOUT ADVERSE POSSESSION 12. No doubt it is true that the decree was passed ex-parte without there being written statement on record. It does not mean that such defendants cannot challenge the findings of the trial Court. He can challenge them on the ground that the evidence adduced by the plaintiff is insufficient and accordingly the findings are not correct. So also he can challenge the decree on the ground that he has got a good cause for not appearing before the trial Court. The first Appellate Court specifically in para 8 of the judgment had given the reasons. First appellate Court considered averments in para no. 9 of the plaint. In para 9 of the plaint plaintiffs alleged that - "ownership of plaintiff if challenged on 20-01- 2006 hence cause of action arose. From this pleadings only inference may be drawn is that possession of plaintiffs becomes adverse to that of defendants on 20-01-2006. " First Appellate Court further observed thus ; "after this date period of 12 years must have been passed for perfection of title by adverse possession. Thus plaint is lacking about specific pleadings as to when plaintiffs possession becomes adverse and whether period of 12 years after that is passed. They simply alleged that they are in possession since 1923 but mere possession is not sufficient perfect title by adverse possession." 13. There are two aspects for appreciating the above observations. One is considering the pleadings and evidence and second is satisfying oneself as to whether they meet out the requirements of law. Learned Advocate Shri Sharma took me through various averments in the plaint and documents filed before the trial Court. According to him, the trial Court has not considered them. 14. The above observations were made by considering only the averments in the plaint. The oral evidence of the plaintiffs before the trial Court was not made available but when the judgment of the the trial Court is perused we can get certain clues. It has been referred in para 13 of the judgment of the trial Court. The appellate Court has not referred as to the said oral and documentary evidence filed before it. So it may not be proper to observe about insufficiency of evidence merely on the basis of averments in the plaint. It has been referred in para 13 of the judgment of the trial Court. The appellate Court has not referred as to the said oral and documentary evidence filed before it. So it may not be proper to observe about insufficiency of evidence merely on the basis of averments in the plaint. Once the trial is started, the evidence needs to be perused (and not pleadings simply). You simply cannot pick up certain averments in plaint and come to conclusion. For these reasons, the observations were drawn prematurely. They need to be set aside. 15. However, does it mean to say that the observations and findings of the trial Court on the point of adverse possession need to be confirmed? When this Court perused the Judgment this Court finds that even the judgment of trial Court is cryptic. The trial Court has only reproduced the averments from the affidavit and only referred that 20 documents were filed. What are those documents has not been discussed. The first appellate Court has not commented on that. Hence, the findings of the trial Court cannot be upheld for this reason (and not for the reason given by the First Appellate Court). In view of this, it may not be proper on the part of this Court to make any comment on sufficiency of evidence on the point of adverse possession. I left it to the decision of the trial Court. LIBERTY TO FILE WRITTEN STATEMENT 16. It has not been pleaded that the defendant has taken recourse to the provisions of Order 9 Rule 13 of Code of Civil Procedure. There is a serious argument about absence of pleadings pertaining to the reasons for not filing written statement. With that view in mind that when the memo of appeal before the first appellate Court is perused, we find certain explanation is given for not filing written statement. The defendant in para 13 has pleaded thus; "13. The appellant submits that the appellant being an old and infirm lady could not instruct her counsel and so she could not file written statement as the office of the counsel was very far away from the place of her residence. The Learned Trail Court passed no W.S. Order and suit proceeded without W.S." (Page 83) 17. The appellant submits that the appellant being an old and infirm lady could not instruct her counsel and so she could not file written statement as the office of the counsel was very far away from the place of her residence. The Learned Trail Court passed no W.S. Order and suit proceeded without W.S." (Page 83) 17. Whether this pleading is sufficient or not is altogether different issue but, the fact remains and is that there is a pleading. On the point of following the procedure prior to proceeding without written statement, trial Court in para 12 of the judgment observed thus; "12. Notice was issued against defendant No.1 and as she never filed any written statement that suit proceeded without written statement of defendant No.1 by order dtd. 30.9.2008 passed by my predecessor-in-title below exh.1." (page 73) 18. Whereas, the first appellate Court observed in para 6 of the impugned judgment as - "6. When case was fixed for written statement even for a long time, defendants did not file written statement and ultimately, the court proceeded without written statement and recorded the evidence. No any fault could be found in this procedure adopted by trial court and ample chances appears to be given for filing written statement." (page 90) 19. The provisions relating to filing of written statement within 90 days were interpreted in case of Mohd Yusuf referred above. The writ Court "without giving a finding about exceptional case made out by the defendant for not filing written statement allowed the defendant to file written statement". It was set aside by the Hon''ble Apex Court. Whereas in case of Saraswati Guru Shantayyaswami, this Court considered the correctness of the order of the trial Court permitting defendant to file written statement after the mandatory period. Trial Court was influenced more by the effect on the defendant if suit will proceed without filing written statement. Trial Court has not considered sufficiency of the reasons for not filing written statement. The order was set aside. 20. After appearance defendant failed to file written statement. The suit was transferred to new Court and suit proceeded without written statement. Ex-parte decree was passed and the appeal was dismissed. During the hearing of the Second Appeal question was raised whether ex-parte decree becomes void on the point of not issuing notice by the transferee Court. It was held against the defendant. The suit was transferred to new Court and suit proceeded without written statement. Ex-parte decree was passed and the appeal was dismissed. During the hearing of the Second Appeal question was raised whether ex-parte decree becomes void on the point of not issuing notice by the transferee Court. It was held against the defendant. This ratio in case Ramchandra Ghadage is not useful to the plaintiffs because, it was passed in a different circumstances. 21. The ratio laid down in case of Fountain Head Promotions and Events Limited would not be applicable because, apart from passing of ex-parte decree there was also an issue of seeking leave to defend as contemplated under Order 37 in a summary suit. 22. It is very well true that there is no corresponding prayer in the prayer clause that defendant may be permitted to file written statement. In case of Gaurishankar issue before Hon''ble Supreme Court was about the scope of an appeal before High Court. That is to say which grounds the unsuccessful defendant can take. Will it be permissible for the defendant before High Court to take a plea that "valid notice to terminate tenancy had not been served and hence the petition is not maintainable". High Court allowed the defendant to take that plea. It was negated by Hon''ble Supreme Court. I think the issue before this Court is different. If there is no prayer to grant liberty to file written statement, can the appellate Court grant it. The issue was not about abandonment of the claim before the trial Court and then taking that ground before the High Court. The issue in case of Gaurishankar pertains to the procedural part of substantive right. Whereas, in the case before us the issue only pertains to compliance of the procedure. 23. In case of Santosh Hajari, the Hon''ble Supreme Court emphasized on the role of the appellate Court while assessing the evidence and the findings. If the findings of the trial Court are reversed by giving cryptic judgment, it causes prejudice to the party who is having findings in his favour. 24. While elaborating the importance of pleading and discarding the evidence adduced without pleading Hon''ble Supreme Court in case of Bachhaj Narhar P quoted the instances for violation of fundamental rules of procedure (in para 8). 25. 24. While elaborating the importance of pleading and discarding the evidence adduced without pleading Hon''ble Supreme Court in case of Bachhaj Narhar P quoted the instances for violation of fundamental rules of procedure (in para 8). 25. Whereas, in case of C.N. Ramappa Gauda, the Hon''ble Supreme Court confirmed the order of remand and re-trial of the suit passed by the High Court with certain modifications. The Hon''ble Supreme Court decided the issue of entitlement of defendant to seek liberty from the appellate Court to file written statement when there is ex-parte decree. So also the issue about the responsibilities on the Court while dealing with non contested suit was discussed. In that case also written statement was not filed after sufficient time. The observations are as follows :- (a) The provisions about filing written statement were a directory and not a mandatory. (b) The purpose for incorporating time limit for filing written statement is for expediting the disposal of the suit and they are not penal in nature. The Hon''ble Supreme Court also considered the disputed questions of fact involved in that partition suit as one of the ground for confirming the order of remand. 26. Whereas in case of Ashok Kundalrai Mohekar, this Court considered the correctness of the order of the first appellate Court thereby setting aside the decision of refusing the prayer for setting aside ex-parte decree. The judgment passed in absence of written statement was not treated as a judgment delivered as per the provisions of the Order 8 Rule 10 of CPC. CONCLUSION 27. If the above observations are considered, I find that the first appellate Court was very much impressed by the grounds of objection taken about the merits of the evidence rather than correctness of the decision to proceed without written statement. Though the defendant has pleaded in the memo of appeal the reason for not filing written statement, first appellate Court has not opined on that. The first appellate Court has concluded that the evidence on the point of adverse possession was not satisfactory and the present 2008 suit ought to have been stayed. For these reasons the first appellate Court concluded to set aside the judgment and remand the matter and hence by way natural corollary thought it fit to grant liberty to file written statement. 28. For these reasons the first appellate Court concluded to set aside the judgment and remand the matter and hence by way natural corollary thought it fit to grant liberty to file written statement. 28. So, on prima facie reading, the approach of the first appellate Court seems inconsistent, on deep scrutiny the final verdict needs to be confirmed. So to say on one hand the first appellate Court observed correctness of the procedure followed prior to proceeding without written statement whereas on the other hand liberty was granted to file written statement. As said above, it was done as the suit was felt necessary to be remanded for insufficient evidence on behalf of the plaintiff. The first Appellate Court has wide powers under the provisions of Order 41 Rule 33 of the Code of Civil Procedure to pass any order which ought to have been passed. 29. I think when the first appellate Court has not commented on sufficiency of the ground not to appear, I do not deem it proper to express my opinion on the judgments cited by both the sides on that issue. I am more impressed by the observations of Hon''ble Supreme Court in case of C.N. Ramappa Guada as referred above. TRIAL COURT JUDGMENT 30. I am also of the considered opinion that the trial Court has failed to discuss the plaintiffs evidence prior to giving a verdict in their favour. The trial Court only reproduced the evidence without making any comment. Such judgment cannot be sustained and even for the benefit of the plaintiffs. When the decree is set aside the first Appellate Court thought it fit to grant liberty to file written statement. At the same time, first Appellate Court has favoured the plaintiffs also. They are given a chance to prove their case again. 31. The first Appellate Court thought it right in setting aside the judgment, I do not subscribe to the reasons given thereof. I am inclined to set aside the findings given by the first Appellate Court about stay of the suit. I think the liberty needs to be given to the parties to put forth their case and then the decision has to be left with the trial Court. 32. So also the findings of the proof of adverse possession given by the trial Court need to be set aside. I think the liberty needs to be given to the parties to put forth their case and then the decision has to be left with the trial Court. 32. So also the findings of the proof of adverse possession given by the trial Court need to be set aside. The appellate Court also committed error in setting aside the findings of the trial Court by assessing incomplete materials. The pleadings were referred but not the evidence. 33. For the above discussion, I answer issue no.1 (about filling written statement) in the affirmative but for different background. I answer issue no.2 (about the stay of the suit) in the negative. The issue no.3 (about remand) is answered by me in the affirmative. In view of this, the remand order needs to be confirmed. But the first appellate Court ought to have imposed certain costs on the defendant who kept quite till ex-parte decree is passed. At the same time, certain directions are required to be given to the parties to regulate their future conduct before the trial Court. Hence the order :- O R D E R (a) The appeal is dismissed. (b) The order of remand passed by District Judge-9, Nagpur on 04-04-2013 in R.C.A.No.62/2012 is confirmed with certain modifications. (c) The respondent/defendant is directed to pay costs of Rs. 5000/- to the appellants. It be deposited with the trial Court and to be paid to the appellants/plaintiffs. (d) Both the parties are directed to appear before the trial Court on 20.01.2020. (e) The respondent/defendant is directed to file written statement on that date positively. (f) Thereafter the trial Court is directed to frame the issues within 15 days. (g) Thereafter the plaintiff is directed to complete their evidence within 4 months. (h) Thereafter the defendant is directed to complete her evidence within 3 months. (i) Thereafter the trial Court is directed to pronounce the judgment within 3 months (including period of arguments). (j) The trial Court is at liberty to regulate the conduct of dilatory litigants by imposing exemplary costs not less than Rs. 3000/-. (k) If there is occasion to exercise power bestowed on the Court as per law (including C.P.C.), trial Court is at liberty to exercise the same. (l) Appeal is disposed of.