ORDER : – Since pleadings are complete and learned counsel for the parties are ready to argue the matter finally, therefore, considering the issue involved in the case, it is heard finally. 2. The instant appeal is arising out of the judgment and decree dated 15-10-2018 passed by the Third Additional District Judge, Jabalpur in First Appeal No. 07-A/2014 whereby, the First Appellate Court after setting aside the judgment of the trial Court, wholesale remitted the matter for retrial. 3. The challenge is basically made on the ground that remanding the case to the trial Court for fresh trial is bad in law and perverse. It is contended by the appellant that the First Appellate Court has failed to see that wholesale remand is permissible in a very exceptional circumstance and such power should be exercised sparingly and it should not be exercised merely because the trial Court in some aspect is wrong and also in circumstance when all evidence has been duly placed before the trial Court and the suit was decided on merits on several issues framed then such remand by the First Appellate Court is absolutely illegal. It is stated by the appellant that the trial Court has framed various issues and on the basis of material adduced by the parties, gave specific findings therein. It is also stated by the appellant that the First Appellate Court has remitted the matter taking note of the evidence which infact could not have been considered as good evidence. It is also contended by the appellant that before the Appellate Court, no such plea was taken by the respondents that the trial Court has not allowed any oral or documentary evidence or excluded any such evidence to be taken on record. In such a circumstance, the wholesale remand setting aside the well reasoned judgment is not permissible. It is also contended by the appellant that the very object of remand is being frustrated as the Appellate Court has given the plaintiff one more opportunity to fill-up the lacunae which they have left at the time of contesting the trial. Accordingly, the appellant has questioned the legality and validity of the judgment and decree passed by the First Appellate Court and claimed that the same be set aside because the First Appellate Court without applying its mind exercised the power of wholesale remand in a very ordinary and casual manner. 4. Accordingly, the appellant has questioned the legality and validity of the judgment and decree passed by the First Appellate Court and claimed that the same be set aside because the First Appellate Court without applying its mind exercised the power of wholesale remand in a very ordinary and casual manner. 4. Per contra, the learned counsel appearing for respondent No. 1 has supported the order passed by the First Appellate Court and has contended that in the present facts and circumstances, there was no other option available with the First Appellate Court but to remit the matter for fresh trial and as such, the impugned judgment and decree does not call for any interference. The appeal being misconceived without any substance and, therefore, deserves to be dismissed. 5. To decide the controversy involved in the appeal certain important facts are required to be appreciated that the plaintiff/respondent No. 1 filed a suit for permanent injunction against defendant No. 2/present appellant claiming that the plaintiff has purchased a plot situated at Mouja Gorakhpur, Patwari Halka No. 24/2, Bandobast No. 605, Khasra Nos. 773/6, 774/6, 775/5 and 776/9 total area admeasuring 3.822 hectares out of which, 25 x 50 = 1250 square feet bearing plot No. 114-A (disputed plot) which has been marked in red in the map and the suit was filed on 6-11-2007. Defendant No. 1 herein was a registered Society bearing registration No. 133/81 (hereinafter referred to as the ‘Society’) and the basic object of the Society was to provide the plots for constructing the house by its members. As per the plaintiff, the defendant No. 1/Society has allotted the disputed plot vide registered sale authority letter dated 30-3-1990 in favour of the plaintiff and also handed over the possession of the same till then the said plot is owned and possessed by the plaintiff without any obstruction. The plaintiff has taken a membership of the Society after depositing the development cost and got the map sanctioned from the Competent Officer and constructed her house upto plinth level and plot was also fenced. As such, spent almost Rs. 1,50,000/-. The defendant No. 1/Society has also allotted a plot in favour of one Smt. Krishna Devi Shrivastava W/o Late Shri Pannalal Shrivastava of Khasra Nos. As such, spent almost Rs. 1,50,000/-. The defendant No. 1/Society has also allotted a plot in favour of one Smt. Krishna Devi Shrivastava W/o Late Shri Pannalal Shrivastava of Khasra Nos. 531/1, 531/2, 531/4, 531/5 and 532/1 of New Bandobast No. 599, Patwari Halka No. 28 area admeasuring 1500 square feet and plot No. 65/23 by registered sale and lateron, the defendant No. 1/Society by amendment, allotted the plot to Smt. Krishna Devi Shrivastava situated over Khasra Nos. 773/4, 774/4, 775/5 and 776/4 out of which, plot No. 114 of 1500 square feet and accordingly, the amended deed was written on 30-10-1986. As per the plaintiff, the said amended deed was not registered and, therefore, Smt. Krishna Devi Shrivastava had not acquired any title over the said plot because for transfer of immovable property, the sale-deed must be registered. As per the plaintiff, she has valid title over the plot No. 114-A and after getting all sanctions from the Competent Authority, the map got sanctioned. It is also alleged that Satyendra Shrivastava fraudulently sold the plot in favour of the defendant No. 2/present appellant by showing the name of the plaintiff. As such, the defendant No. 2/appellant had no right over the property and as such, she was trying to raise unauthorized construction with the help of unwanted elements; force and hence, the plaintiff had to file a suit for permanent injunction. 6. The Society has not filed any written statement and has also not come forward to contest the suit. The written statement was filed by defendant No. 2/present appellant taken a stand that the plot Nos. 113 and 114 were sold by Smt. Krishna Devi Shrivastava through registered sale-deed dated 28-9-1985 and by amended deed dated 30-10-1986, the said plot were recorded in the name of Satyendra Shrivastava after the death of Smt. Krishna Devi Shrivastava and a letter was issued by the Society in favour of Satyendra Shrivastava showing the transfer of both the plots in his favour. Satyendra Shrivastava sold the plot No. 113 to one Shri Deepak Kumar Pasi and Suraj Kumar Pasi vide registered sale-deed dated 27-6-2005 and plot No. 114 to one Neetu Anandani and thereafter, Neetu Anandani vide registered sale-deed dated 22-12-2016 sold the plot to defendant No. 2 namely Sudesh Kohli the present appellant. Satyendra Shrivastava sold the plot No. 113 to one Shri Deepak Kumar Pasi and Suraj Kumar Pasi vide registered sale-deed dated 27-6-2005 and plot No. 114 to one Neetu Anandani and thereafter, Neetu Anandani vide registered sale-deed dated 22-12-2016 sold the plot to defendant No. 2 namely Sudesh Kohli the present appellant. It is claimed by defendant No. 2 that from the date of sale-deed dated 22-12-2006, she is in possession of the plot which is situated at APR Colony, Katanga. Thereafter, a police report was also made to the Police Station, Cantt by the plaintiff and on her complaint, police conducted an enquiry and given the finding that plot No. 114-A does exist in APR Colony, Katanga. As per the defendant No. 2, the plot No. 114-A is of 1500 square feet surrounded by plot No. 113 and side road as per the sanctioned layout plan. It is also the stand of defendant No. 2 that in a sanctioned layout plan of the Society, plot No. 114-A does not exist. It is also stated that the Society sold the plot to the plaintiff but as per the sale-deed, the possession of plot No. 114-A was neither handed over nor any construction was made by the plaintiff over there. As per the record available, plot Nos. 113 and 114 were allotted and sold to Smt. Krishna Devi Shrivastava and correction deed was made in favour of Satyendra Shrivastava. The Society has also issued a letter to the plaintiff restraining her to raise any construction over plot No. 114. 7. The trial Court framed as many as six issues and recorded evidence and finally dismissed the civil suit holding that the plaintiff has failed to prove her case. It is also opined by the trial Court that the plaintiff failed to prove as to when, the possession of the disputed plot was given to her. The trial Court has also found that when it was a specific stand taken by the defendant that the disputed plot No. 114-A was not existing in the layout plan of the Society then the plaintiff had to prove that the said disputed plot is a part of layout plan of the Society but she failed to do so. The trial Court has also found that when it was a specific stand taken by the defendant that the disputed plot No. 114-A was not existing in the layout plan of the Society then the plaintiff had to prove that the said disputed plot is a part of layout plan of the Society but she failed to do so. The trial Court, after examining the documents produced by the parties, has arrived at a conclusion that the plaintiff has not shown as to on which date, the possession of the disputed plot was given to her. The document Ex.P-1 produced by the plaintiff contained a clause that the possession of the plot would be given to her after delimitation of the boundaries of the Cantonment Board and Nagar Nigam and thereafter, no document was produced by the plaintiff to show that she acquired the possession of the plot and as such, the trial Court has arrived at a finding that the plaintiff was never put in possession of the disputed plot and, therefore, the suit was dismissed as the plaintiff was not found eligible to get the decree of mandatory injunction. The trial Court has observed that the plot of the plaintiff is 114-A whereas, the plot of defendant No. 2 is 114 as such, both the plots are distinct and the defendant has proved the fact that on her plot i.e. plot No. 114, boundary walls have been constructed whereas, the plaintiff has not produced any proof and evidence to demonstrate that she has secured her plot by constructing its boundaries and as such, it is found by the trial Court that she failed to prove her suit. 8. Thereafter, an appeal was preferred under section 96 of the Code of Civil Procedure by the plaintiff/respondent No. 1 assailing the judgment and decree passed by the trial Court. The First Appellate Court has observed that the document Ex.P-8, a letter of possession reveals that the plaintiff/respondent No. 1 has been handed over the possession of plot No. 114-A and further, observed that the plots i.e. Nos. 114-A as also 114 are different as per their area and also of khasra numbers whereas, the trial Court has not given any decision in respect of their separate existence and, therefore, the dispute was not properly resolved and the same still exists between the parties. 114-A as also 114 are different as per their area and also of khasra numbers whereas, the trial Court has not given any decision in respect of their separate existence and, therefore, the dispute was not properly resolved and the same still exists between the parties. The First Appellate Court, therefore, observed that the trial Court has resolved the suit on the basis of presumptions ignoring the material evidence produced by the parties and accordingly, for proper adjudication, the case was remanded back for retrial. 9. As per the contentions made by the learned counsel for the appellant that the First Appellate Court has not properly exercised its discretion as provided under Order 41, Rule 23-A of the Code of Civil Procedure but it is arbitrarily and without considering the scope of the provision, remitted the matter back for trial afresh. As per the learned counsel for the appellant, the trial Court has left no issue answered but given the finding on the basis of material produced by the parties and after appreciating the evidence adduced, dismissed the suit. As per the contention of the learned counsel for the appellant that the First Appellate Court has committed illegality while remanding the case for fresh trial whereas, on the issue directly involved, the evidence was led by the parties in trial Court and on the basis of the same, the trial Court has answered the issues and given reasoned findings. As per the counsel for the appellant, on the basis of the evidence adduced by the parties and appreciation made by the trial Court on the same, there was no reason for the Appellate Court to say that the trial Court has proceeded on presumption and dismissed the suit but on the contrary, the plaintiff failed to adduce any material in support of her stand and, therefore, the suit was dismissed. As per the counsel for the appellant the power of remand should not be ordinarily exercised only on the ground that the reasoning of the trial Court in some aspect is wrong. It is also contended that before the First Appellate Court no such ground was raised by the respondent that the trial Court has excluded any finding on oral or documentary evidence and under such a circumstance, the First Appellate Court instead of remitting the matter back for retrial, should have decided the appeal on merits. It is also contended that before the First Appellate Court no such ground was raised by the respondent that the trial Court has excluded any finding on oral or documentary evidence and under such a circumstance, the First Appellate Court instead of remitting the matter back for retrial, should have decided the appeal on merits. To bolster his submission, the learned counsel for the appellant has placed reliance upon the decisions reported in AIR 1993 Orrisa 59 parties being Dulana Dei vs. Balram Sahu, 2012(1) M.P.L.J. 114 parties being Gangadhar vs. Bhanwaribai, 2013(4) M.P.L.J. 135 parties being Pushpdevi vs. Harvilas, (2007) 6 SCC 737 parties being Ramchandra Sakharam Mahajan vs. Damodar, AIR 1954 Madras 783 parties being Ramkrishna vs. Rangayya, AIR 1997 MP 62 parties being Umrao Bai vs. Sardarilal Khatri, AIR 1995 Delhi 73 parties being Kartar Singh vs. Rameshwari Kela, AIR 1987 Orrisa 227 parties being Nilamani Dibya vs. Biswanath Mohpatra, AIR 1985 Gujarat 27 parties being Seth Madhavrao vs. FCI and AIR 2005 Punjab and Haryana 14 parties being Hasham vs. Jhangi Ram. 10. On the other hand, the learned counsel for respondent No. 1 has supported the order of the First Appellate Court and submitted that if the evidence adduced by the parties are seen then it is clear that the judgment and decree passed by the trial Court dismissing the suit of the plaintiff was not proper and it was liable to be set aside. 11. The respondents has also contended that the Competent Authorities have sanctioned the map of the plaintiff in respect of the suit plot No. 114-A. The Society has also issued a possession letter i.e. Ex.P.-8. It is also contended by the respondent that from the sale-deed executed in favour of the present appellant in respect of plot No. 114, it is clear that the same situates on different khasras. It is also contended that the Society, neither filed any written statement nor entered the witness-box and, therefore, an adverse inference should be drawn against the Society. It is also contended by the respondent that since there is no provision for partial remand, therefore, the First Appellate Court has not committed any illegality and thus rightly exercised the discretion remitting the matter for wholesale retrial directing the parties to face the same. It is also contended by the respondent that since there is no provision for partial remand, therefore, the First Appellate Court has not committed any illegality and thus rightly exercised the discretion remitting the matter for wholesale retrial directing the parties to face the same. The respondent has relied upon AIR 1999 SC 1441 parties being Vidhyadhar vs. Manik Rao and another, 2002 AIR SCW 417 parties being P. Purushottam Reddy and another vs. M/s Pratap Steel Ltd., 2003(4) M.P.L.J. Note 27 Shri Deo Raghunathji Bada Mandir, Bina vs. Prahlad Singh and another, 2012 (III) MPWN 15 parties being Jagannathan vs. Raju Singamani and 1999 AIR SCW 780 parties being Answani Kumar Patel vs. Upendra J. Patel and others. 12. I have heard the arguments advanced by the learned counsel for the parties and perused the record available. 13. Considering the arguments advanced by the learned counsel for the parties, the questions for determination which arise before this Court are as under : – (i) Whether the First Appellate Court has rightly exercised the discretion provided under Order 41, Rule 23-A of the Code of Civil Procedure? Or (ii) The First Appellate Court instead of remitting the matter to the trial Court for fresh trial ought to have decided the appeal on merits? To answer the questions involved in this appeal, it is apt to see as to on what basis, the trial Court has dismissed the suit. The plaintiff/respondent No. 1 filed a suit for permanent injunction claiming that she is in possession of plot No. 114-A area measuring 1250 square feet but defendant No. 2/appellant raising construction over her plot unauthorizedly and, therefore, decree of permanent injunction be passed against the defendant. On the other hand, the defence of the defendant No. 2/appellant was that she has purchased the plot i.e. plot No. 114 area measuring 1500 square feet and is also in possession of the plot demarcated with boundaries and the construction till the plinth level has already been done by her. A specific stand was also taken by the defendant that as per the sanctioned layout plan of the Society i.e. defendant No. 1/respondent No. 2 herein, there was no plot like 114-A on which, the plaintiff is raising her claim. The trial Court framed as many as six issues and decided all of them giving specific finding thereof. A specific stand was also taken by the defendant that as per the sanctioned layout plan of the Society i.e. defendant No. 1/respondent No. 2 herein, there was no plot like 114-A on which, the plaintiff is raising her claim. The trial Court framed as many as six issues and decided all of them giving specific finding thereof. The trial Court on the basis of the oral and documentary evidence produced by the parties has very categorically observed that the plaintiff failed to prove as to on what date, the possession of the disputed plot i.e. plot No. 114-A was given to her. The trial Court has also examined the document i.e. Ex.P.-1, the sale-deed of the plot No. 114-A made in favour of the plaintiff and in the said document, Clause No. 5 very categorically provides as under : – and also considered the document Ex.P-8 that the possession letter issued on 30-6-1993 and simultaneously, in paragraph 22 of its judgment has considered the statement of the witness namely N. P. Mishra husband of the plaintiff who had stated that the possession was handed over on 30-3-1990 and has also stated in the evidence that a document Ex.P-8 only a possession letter does not contain any description about handing over the possession of the disputed plot and no proceeding regarding handing over the possession was done. The trial Court, thereafter, comparing the statements of the plaintiff witnesses and recital of documents Ex.P-1 and Ex.P-8 and arrived at a finding that the plaintiff failed to prove by adducing oral and documentary evidence as to on what date, the possession of the disputed plot was handed over to her. The trial Court secondly very categorically dealt with the issue regarding existence of plot No. 114-A and in paragraph 20 of the judgment, after considering the layout plan, has given finding that the plaintiff failed to prove that the disputed plot is a part of layout plan. The trial Court has also observed that the plaintiff further failed to prove that the disputed plot No. 114-A is a part of sanctioned layout plan of defendant No. 1/respondent No. 2 herein. The trial Court has also observed that the plaintiff further failed to prove that the disputed plot No. 114-A is a part of sanctioned layout plan of defendant No. 1/respondent No. 2 herein. Finally, in paragraph 23 of the judgment, the trial Court has very categorically observed that in view of Ex.P-1, the plaintiff was not given possession on the date of purchase and further, the plaintiff did not produce any oral and documentary evidence to substantiate that as to on what date, she got possession of the disputed plot and hence, the suit was dismissed. 14. This Court has examined the material available on record as also the finding given by the trial Court and found that the trial Court has very elaborately discussed each and every evidence oral and documentary adduced before the Court and then arrived at a finding. The trial Court has also dealt with the issue involved in the case and left no issue unanswered or undecided. At this stage, it is not proper for this Court to opine whether the findings given by the trial Court was correct or justified otherwise the same would be finding of this Court and would come in the way of the Appellate Court to decide the appeal fairly and with independent mind. Now, this Court has to see whether the First Appellate Court has exercised its discretion as provided under Order 41, Rule 23-A of the Code of Civil Procedure properly or not. 15. On a bare perusal of the order of the First Appellate Court it is gathered that nowhere it is stated by the First Appellate Court that respondent No. 1 herein who was appellant before the First Appellate Court has at any point of time raised issue before the First Appellate Court that the trial Court has left any oral and documentary evidence untouched or not allowed to be taken on record, otherwise, the reasoning would have been different. It was also not a ground that any issue left undecided but from the order of First Appellate Court, it reflects that the finding given by the First Appellate Court is wrong. It was also not a ground that any issue left undecided but from the order of First Appellate Court, it reflects that the finding given by the First Appellate Court is wrong. However, the First Appellate Court in paragraph 12 of its judgment has observed that from document Ex.P-8, which is a possession letter, reveals that the plaintiff was given the possession of plot No. 114-A but has not given any specific reason as to why, the finding of the trial Court, in this respect made in paragraph 22, is not proper though arrived after appreciating the statement of the witnesses adduced by the plaintiff and also taking note of the documents including the document Ex.P-8 and thereafter, the First Appellate Court, in paragraph 13 of its judgment has observed that the trial Court has not resolved regarding dissimilarity of plot No. 114-A and 114 whereas, the trial Court very categorically given finding in this regard holding that the plaintiff failed to prove that plot No. 114-A existed in the sanctioned layout plan of Society from which, such plot has been purchased. The First Appellate Court has also observed that the finding of the trial Court is based upon the presumption and assumption but has not specified as to which finding is based upon the presumption. Accordingly, in my opinion, the First Appellate Court has acted beyond the scope of the provision which empowers the Appellate Court to remand the matter wholesale for retrial and without appreciating the jurisdiction conferred on it under Rule 23 and 23-A of Order 41 of the Code of Civil Procedure, instead of deciding the appeal on merits, directed the trial Court for conducting the fresh trial. The order passed by the First Appellate Court, therefore is not sustainable in the eye of law considering the scope of remand as laid down by the Supreme Court, this Court and other High Court as well discussed hereinbelow. 16. In case of P. Purushottam Reddy (supra), the Supreme Court has observed as under : – “…... In 1976, Rule 23-A has been inserted in Order 41 which provides for a remand by an Appellate Court hearing an appeal against a decree if (i) the trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. In 1976, Rule 23-A has been inserted in Order 41 which provides for a remand by an Appellate Court hearing an appeal against a decree if (i) the trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the Appellate Court can exercise the same power of remand under Rule 23-A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23-A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra vs. Sushila (AIR 1965 SC 365 at p. 399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the Court may now exercise the power of remand dehors the Rules 23 and 23-A. To wit the superior Court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20, Rule 3 or Order 11, Rule 31 of the Civil Procedure Code and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An Appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 of the Civil Procedure Code. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.” The Supreme Court further in (2017) 11 SCC 392 parties being A. A. Prakasan vs. Anupama and others has observed as under : – “2….We are of the view that even after the amendment was permitted, further question whether any fresh issue was required to be framed or fresh evidence was to be led was required to be gone into before setting aside the judgment. In case it becomes necessary to frame additional issue and permit the parties to lead further evidence, a report could be called for from the trial Court on such additional issue. In case it becomes necessary to frame additional issue and permit the parties to lead further evidence, a report could be called for from the trial Court on such additional issue. Remand could be ordered only if the judgment of the trial Court was erroneous and the appeal Court could not decide the matter and not merely on an amendment being allowed.” Further in case of Municipal Corporation, Hyderabad vs. Sunder Singh, reported in (2008) 8 SCC 485 , the Apex Court has observed as under : – “The Court should be loathe to exercise its power in terms of Order 41, Rule 23 and an order of remand should not be passed routinely. It is not to be exercised by the Appellate Court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial Court, it has to come with a proper finding of its own. The Appellate Court cannot shirk its duties. Thus, the scope of remand in terms of Order 41, Rule 23 is extremely limited. The suit in this case was not decided on a preliminary issue. Order 41, Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence. No case has been made out for invoking the jurisdiction of the Court under Order 41, Rule 23 of the Code.” [Emphasis Supplied] This Court in case of Shri Deo Raghunathji Bada Mandir, Bina (supra) has also observed as under : – “The power of remand should be exercised sparingly. Endeavour of the Appellate Court should be to dispose of the case itself. The power of remand should not be ordinarily exercised merely because in the view of the Appellate Court reasoning of the trial Court in some aspects is wrong. Where all evidence has been duly placed before the trial Court and it has decided the suit on merits on several issues which were framed, the Appellate Court has no power to remand. The order of remand retards the progress of the case and puts it in reverse gear. Where all evidence has been duly placed before the trial Court and it has decided the suit on merits on several issues which were framed, the Appellate Court has no power to remand. The order of remand retards the progress of the case and puts it in reverse gear. If the Appellate Court finds the findings of the trial Court erroneous or faulty it has the power to give its own findings.” This Court in case of Ashwinkumar K. Patel (supra), has also observed as under : – “The High Court should not ordinarily remand a case under O. 41, R.23, Civil Procedure Code to the lower Court merely it considered that the reasoning of the lower Court in some respect was wrong. Such remand orders lead to unnessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other.” This Court in case of Murarilal vs. Ram Kumar Ojha and another, reported in 2015(1) M.P.L.J. 243 has observed as under : – “The scope and nature of jurisdiction conferred on Appellate Court under Rules 23 and 23-A of Order 41 of Civil Procedure Code are well settled. The ingredients of Order 41, Rule 23-A are two fold, firstly; the Appellate Court upon consideration of the pleadings and material brought on record by way of oral and documentary evidence in the event reaches the conclusion to reverse the findings of the trial Court; only thereafter, and secondly; it has to apply its mind as to whether the circumstances warrant retrial. Upon fulfilment of these two requirements, the provisions of Order 41, Rule 23, Civil Procedure Code can be applied in the matter of remand of the case. In the present case, trial Court has considered the order passed by the Sub Divisional Officer dated 8-7-2009 passed in compliance of the order passed in Civil Suit along with other documentary evidence relating to revenue record to reach the conclusion that the appellants/defendants were not entitled to seek mutation over the suit land of plaintiff’s ownership and possession, the first Appellate Court has not considered aforesaid documents. As a matter of fact, after consideration of the evidence on record first Appellate Court ought to have reached the conclusion for reversing the findings so recorded by the trial Court and thereafter, should have applied the mind as to whether the re-trial was necessary. Admittedly, the first Appellate Court has not dealt with the appeal on merits and made an observation that the aforesaid evidence was not dealt with by the trial Court while recording the aforesaid findings and that is the reason why the impugned judgment and decree suffers from perversity of approach. The first Appellate Court has in fact erroneously exercised the jurisdiction under Order 41, Rule 23, Civil Procedure Code while ordering remand of the case to the trial Court for fresh decision instead of deciding it on merits.” This Court in case of Pushpadevi (supra) had also an occasion to deal with the scope of the provision of Order 41, Rule 23 or Rule 23-A of the Code of Civil Procedure and observed as under : – “….To attract provisions of Order 41, Rule 23 or Rule 23-A, present appellant has to demonstrate that the Additional District Judge was considering validity or otherwise “decree” and, in that event only, present appeal against order can be held that to be maintainable. Moreover, perusal of the impugned order reveals that it is not only an order of remand but thereby set aside the impugned judgment and decree without consideration on merits. Thus, a retrial as required by Order 41, Rule 23-A is not warranted in the facts and circumstances of the case. Therefore, this Court finds that remedy of filing appeal against order is available to the appellant. Hence after analysing the principles underlying the object, the findings of the Appellate Court by setting aside the judgment and decree of the trial Court, while remanding back the case for fresh trail are not in consonance with the provisions of law mentioned above. The Appellate Court ought to have addressed itself to these vital points and was expected to proceed with the case on merits. Consequently, the appeals are hereby allowed and the findings of the Appellate Court in remanding the case back for fresh trial are set aside. The Appellate Court ought to have addressed itself to these vital points and was expected to proceed with the case on merits. Consequently, the appeals are hereby allowed and the findings of the Appellate Court in remanding the case back for fresh trial are set aside. It is directed that Appellate Court shall restore the appeals to their original numbers and after affording opportunity of hearing to the parties and the inter-pleader decide the appeals on their own merits, in accordance with law.” This Court in Smt. Umrao Bai and others (supra), has observed that it is well established that powers of remand cannot be exercised to fill up the lacuna of one or other party. They can be exercised for curing a radical defect in trial or hearing in the appeal resulting in miscarriage of justice. Further in case of Kartar Singh (supra) has observed as under : – “9. Since I do agree with the learned counsel for the appellant that no issue had been left undecided by the learned Subordinate Judge, the order of remand falls on this ground alone. 10. Even otherwise, the order of remand cannot be sustained as it remits the case for retrial which was totally uncalled for. 11. To order retrial of a case is a serious matter and may mean considerable waste of public time. Such an order can be passed only in exceptional cases as, for example, where there had been no real trial of the dispute and no complete or effectual adjudication of the proceeding and the party complaining has suffered material prejudice on that account. Remand is not meant to provide fresh opportunity to a party to litigate.” In case of Nilamani Dibya and another (supra) has observed as under : – “9. Even if, R. 23A has been added by amendment, the principle behind remand by the Appellate Court has not undergone any change as the power of remand can be exercised where the Appellate Court while reversing the decision of the trial Court considers a retrial necessary. The power is no doubt wide. Yet, wider is the power greater should be the restraint keeping in mind that early finality of a litigation is the public policy.” In case of Middi Ramakrishna Rao vs. Middi Rangayya and ors., reported in AIR 1954 Madras 783, the Court has observed as under : – “4. The power is no doubt wide. Yet, wider is the power greater should be the restraint keeping in mind that early finality of a litigation is the public policy.” In case of Middi Ramakrishna Rao vs. Middi Rangayya and ors., reported in AIR 1954 Madras 783, the Court has observed as under : – “4. This is not within the scope of remand under O. 41, R. 23. It is quite true that under the Madras Amendment of O. 41, R. 23 the discretion of the Court is unfettered; but that discretion of the Court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a Court of Appeal. The Appellate Court should not however rashly and without sufficient cause, order retrial in any case in which this can possibly be avoided; a remand order should not thus be made under this rule in a case which could efficiently be dealt with under R. 25; nor can a remand be ordered so as to enable a party to fill up the lacuna in his case. It has been repeatedly held by this Court that a remand should not, generally speaking, be ordered when the defect in the proceeding has been made due to the negligence or default of the party who will benefit by the remand. It has been further held that the mere fact that the evidence on record is not sufficient to enable a Court to come to a definite finding on the point in issue, is not sufficient to enable the Court to remand the case, when there is no reason to think that the parties did not have an opportunity of producing all the evidence that they desired to produce before the trial Court. There is a clear danger that in such cases a remand order may in effect be an invitation to perjury.” 17. In view of the law laid down by the Hon’ble Supreme Court as also by the different High Courts as mentioned hereinabove, I am of the opinion that it is a fit case in which, it can be held that the First Appellate Court has not exercised its discretion as conferred under the provisions of Order 41, Rule 23 or 23-A of the Code of Civil Procedure. The First Appellate Court instead of remitting the matter could have decided the same on merits. The First Appellate Court instead of remitting the matter could have decided the same on merits. However, the respondents have also not contended that since the Society did not come forward to file any written statement nor entered into the witness-box, adverse inference can be drawn but failed to demonstrate as to against whom adverse inference would be drawn. 18. Accordingly, the cases relied by the respondent in any manner are not helpful for the respondent/plaintiff and infact are not applicable in the present case as has been discussed hereinabove. Accordingly, I allow the appeal, set aside the impugned judgment and decree passed by the First Appellate Court in RCA No. 07-A/2014 and remit the matter to the First Appellate Court i.e. Third Additional District Judge, Jabalpur for deciding the appeal afresh on its own merits by giving opportunity of hearing to the parties concerned. The parties shall appear before the First Appellate Court on 5-8-2019 and the Appellate Court is further directed to decide the appeal within a further period of three months thereafter. The Appellate Court will decide the appeal in accordance with law on its own merits without being influenced by any of the observations made by this Court in relation to the merits of the case of the parties. 19. With the aforesaid observations, the appeal filed by the appellant stands allowed. Parties shall bear their own cost.