JUDGMENT : 1. This Appeal is filed by the defendant no.2/appellant questioning the legality and propriety of the Judgment of remand dated 25.09.2017 passed in Title Appeal Case No.04/2015 by the learned District Judge, Special Division–I, East Sikkim at Gangtok arising out of the Judgment dated 24.07.2015 passed against the plaintiff/respondent in Title Suit No.39/2014 by the Court of Civil Judge, East Sikkim at Gangtok dismissing the suit. 2. The plaintiff filed the suit seeking declaration that she is the daughter of Late Gyanson Rai @ Sonam Topden Bhutia inter alia pleading that her father joined British army in the year 1966. The people from Bhutia community were not recruited in British Army, therefore, he changed his name as Gyanson Rai in place of Sonam Topden Bhutia and joined the British Army. The said change of name was only to secure job in British army. Later he married with Ms. Rupa Rai nee Thakuri in 1976-77. Out of the said wedlock plaintiff was borne at Hongkong in the year 1977. 3. The plaintiff’s father, after spending almost 20 years in service at Hongkong came to Kurseong on retirement and started living there. Again after sometime he could get the job at Bahrain. Later he came to Gangtok and stayed at Zigmee Building, old children Park, Gangtok. The real identity of Gyanson Rai @ Sonam Topden Bhutia came to the knowledge of the plaintiff after coming back of him from Bahrain. In 2014 plaintiff’s father died and his last rituals were performed as per the traditions of the Bhutia community. 4. In the said backdrop and pleading, the suit has been filed seeking declaration that the plaintiff is the daughter of Gyanson Rai @ Sonam Topden Bhutia. In the suit no one appears as defendant-despite publication of notice. The said suit was dismissed by Learned Trial Court. On filing an appeal the lower appellate Court by the impugned judgment remitted the matter back to the Trial Court because Jigmee P. Bhutia (defendant no.2/appellant) and the daughter of plaintiff’s father were found necessary party to the suit. The Appellate court observed their presence is necessary for effective and complete adjudication and to settle the issue involved in the suit. The Appellate court observed their presence is necessary for effective and complete adjudication and to settle the issue involved in the suit. However, with the help of proviso of Section 99 and under Order 41 Rule 23A of the CPC by setting aside the impugned judgment and decree of the Trial Court remitted the matter back restoring the suit to its original number. The plaintiff is also allowed to amend the pleadings to the extent required and to decide the suit in accordance with law. 5. Learned Counsel for the appellant has argued with vehemence and submitted that the judgment of remand passed by learned Lower Appellate Court is contrary to the spirit of the provisions of Order 41 Rule 23 A of the CPC, without reversing the findings recorded by the Trial Court. It is argued as per Section 99 of CPC, on account of misjoinder or non-joinder of the parties reversing or modifying the decree for error or illegality not affecting the merit and jurisdiction is not permissible. It is further argued the lower Appellate Court while pronouncing the judgment granted liberty to the plaintiff to amend the pleadings without affording opportunity of rebuttal. However, after remand such an observation prejudices the defendant/appellant, therefore, the judgment of remand passed by the learned Lower Appellate Court is illegal and contrary to the settled law, which, may be set aside. In support of his contention reliance has been placed on the judgment of P. Purushottam Reddy and Ors vs. Pratap Steel Ltd., reported in AIR 2002 SC 771 . The reliance has further been placed on the judgment of Ashwinkumar K. Patel vs. Upendra J. Patel & Ors., reported in AIR 1999 SC 1125 . In addition further reliance has been placed on Promotha Nath Mazumdar vs. Nagendra Nath Mazumdar, reported in MANU/WB/0472/1929; Pasupuleti Venkateswarlu vs. The Motor & General Traders, reported AIR 1975 SC 1409 , R.K Tombi vs. R.K Maipaksana Singh & ors., reported in MANU/GH/0134/2002; Municipal Corporation, Hyderabad vs. Sunder Singh, reported in AIR 2008 SC 2579 ; Mukund Ramchandra Kolapkar vs. Kisan Tryambak Gaikwad & ors., reported in MANU/MH/1366/2008; Rajinder Sharma vs. Arpana Sharma, reported in AIR 2011 SC 3161 . In view of the said submissions, prayer is made to set aside the judgment of remand directing the Lower Appellate Court to decide the appeal on merit as per law. 6. In view of the said submissions, prayer is made to set aside the judgment of remand directing the Lower Appellate Court to decide the appeal on merit as per law. 6. Per contra, learned Senior Counsel representing plaintiff/respondent contends that certainly as per Section 99 of CPC Judgment and decree cannot be reversed or modified by way of remand in an appeal on account of misjoinder or non-joinder or some other defects or irregularity in any proceedings not affecting the merits of the case and also the jurisdiction; but the proviso makes it clear that the substantive provision of Section 99 CPC would not attract in a case of non-joinder of “necessary” party. He placed reliance on the judgments of Remco Industrial Workers House Building Cooperative Society vs. Lakshmeesha M. & Ors., reported in AIR 2003 SC 3167 ; Jaibunnisha Bibi vs. Sk. Jalaluddin & Ors., reported in MANU/OR/0735/2008; J. Balaji Singh vs. Diwakar Cole & Ors., reported in AIR 2017 SC 2402 ; Radhakrishnan P.S vs. A. Indu, reported in ILR 2018 (3) Kerala 820; Jose vs. Johnson, reported in 2020 (3) SCC 780 . It is said Lower Appellate Court has not committed any error of law while exercising the jurisdiction and directing remand. It is urged the impugned Order passed by the learned Lower Appellate Court is in conformity to law, which do not warrant any interference. 7. In the present case looking to the findings recorded by the Appellate Court, the appellant as well another sister of the plaintiff were found “necessary” party, looking to the nature of the declaration prayed in the suit. Therefore, by the aid of proviso to Section 99 and as per the procedure prescribed under Order 41 Rule 23 A of CPC reversing the decree of the Trial Court and by recording finding that re-trial considered necessary in the facts of the case remand has been directed. 8. After having heard learned Counsel representing the parties in the facts of the case, it is required to be seen whether the Order passed by the learned Lower Appellate Court directing remand is within the purview of Proviso to Section 99 and the procedure prescribed under Rule 23A of Order 41 of CPC or the Lower Appellate Court acceded from its power while passing the impugned Judgment. 9. 9. On perusal of the relevant provisions, as per Section 99, the decree, if any, passed by the trial Court shall not be reversed or substantially varied nor the case shall be remanded in appeal merely due to misjoinder or non-joinder of the parties or causes of action or any error, defect or irregularity in any proceedings in the suit not effecting the merit of the case or jurisdiction of the court. But the proviso puts an embargo to the applicability of the provisions of Section 99, in case of non-joinder of “necessary” party found by the Court. Thus it is clear, due to non-joinder of “necessary” party, in view of proviso, aid of Section 99 CPC would not available to the appellant. The lower Appellate Court recorded the findings that appellant and another sister of plaintiff are “necessary party” to the suit, in the context of the relief as prayed therein. 10. As per Order 41 Rule 23 of the CPC remand by the Appellate Court, may be directed when the suit is decided on any primary point reversing the decree. The Appellate Court can further direct to decide the issue or issues by re-admitting the suit on its original number, as per law after recording the evidence. Rule 23 A of Order 41 CPC was inserted by Act of 104 of 1976 w.e.f. 01.02.1977 by which as specified if the suit has been decided otherwise then on preliminary point and if re-trial is considered necessary by Appellate Court reversing the decree under appeal, the remand can be directed. As per Rule 25 which as exist was prior to the said amendment makes it clear that in case the Trial Court omitted to frame or try any issue or to determine any question of facts which the Appellate Court deems it essential for decision of the suit on merit, after framing the issue and referring the same for trial to the Court who passed the decree, may direct to take such evidence as required while remanding. Similarly, on bringing the additional evidences on record under Order 41 Rule 27 of CPC, the Appellate Court may either directly take the evidence or direct the Trial Court to take such evidence and send back to the Appellate Court. Similarly, on bringing the additional evidences on record under Order 41 Rule 27 of CPC, the Appellate Court may either directly take the evidence or direct the Trial Court to take such evidence and send back to the Appellate Court. While taking such additional evidence on record as allowed by the Appellate Court he shall specify the points on which the evidence ought to be taken. Therefore, looking to the aforesaid it is apparent that remand is permissible if a suit is decided on preliminary issue as per Rule 23 and if re-trial considered necessary as per Rule 23A and on any issue which in the opinion of the Court is required to be decided essentially as per Rule 25 and for taking the additional evidence as per Rule 28 and 29 of Order 41 of CPC. 11. On perusal of the impugned judgment and facts of the case, it is not in dispute that the Judgment of remand passed by the learned Lower Appellate Court is in exercise of the power under Rule 23 A of the Order 41 of the CPC with the aid of Proviso to Section 99 of CPC, therefore, to the said extent it may be seen such remand is in conformity to law, or not permissible. 12. As referred above, by way of Act No.104 w.e.f 01.02.1977 Rule 23A is inserted in Order 41 of CPC. As per proviso to Section 99 it is apparent that the provisions of the Section 99 would not be attracted if a defect of non-joinder of “necessary” party is there. The legislative intent is clear that remand of any judgment by Appellate Court is not permissible for a formal defect but cannot be denied if defect of nonjoinder of “necessary” party is there, in particular when re-trial considered necessary. The wholesale remand can be ordered, if the Court opined that re-trial is considered necessary, reversing the decree, under Rule 23A, akin to the power of Rule 23. 13. The reliance placed by learned Counsel for the appellant on a judgment of P. Purushottam Reddy (supra) throw light to the powers of the Appellate Court, how the power ought to be exercised under Rule 23 A of Order 41 of CPC. 13. The reliance placed by learned Counsel for the appellant on a judgment of P. Purushottam Reddy (supra) throw light to the powers of the Appellate Court, how the power ought to be exercised under Rule 23 A of Order 41 of CPC. The relevant of paragraph 9 is reproduced as thus:- “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 Rules 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 Manilal Nanavati v. Sushila Mahendra Nanavati [ AIR 1965 SC 364 : 66 Bom LR 681] (AIR 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 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 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting 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 CPC. An unwarranted Order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.” 14. On perusal of above, it is clear that inherent powers at the appellate Court can be availed ex debito justitiae only in the absence of express provisions in the Code. An unwarranted Order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.” 14. On perusal of above, it is clear that inherent powers at the appellate Court can be availed ex debito justitiae only in the absence of express provisions in the Code. In the exceptional cases the Court can exercise the power of remand dehors the Rule 23 and 23 A of the Order 41 CPC. As per the ratio of the said judgment in exceptional cases the Court may exercise the power of remand even dehors the Rule 23 and 23 A of the Order 41 of the CPC. Thus, after the amendment Act No.104, dated 01.02.1977, as per proviso to Section 99 if there is a defect of non-joinder of “necessary” party and the Lower Appellate Court if records a finding that re-trial is necessary, by setting aside the decree of Trial Court, the Appellate Court may direct remand in exercise of the powers of Rule 23 or 23A of CPC or even dehors the rule in exceptional cases, in view of ratio of the above judgment. 15. Looking to the position of law as discussed above, the finding recorded by the Lower Appellate Court is required to be looked into. As per the said finding it is clear that defendant no.2/appellant and daughter of Late Gyanson Rai @ Sonam Topden Bhutia were found to be the “necessary party” being legal heir, to pass a declaratory decree sought by the plaintiff. The nature of the declaration in the present case sought by the plaintiff is that she be declared the daughter of Late Gyanson Rai @ Sonam Topden Bhutia, however, in the said circumstances, joining appellant (son) and daughter of the Late Gyanson Rai @ Sonam Topden Bhutia was rightly found “necessary party” by the Lower Appellate Court. It is to observe that appellant has not said that they are not the necessary party and not assailed such findings. Once the Court found the son and daughter of Late Gyanson Rai @ Sonam Topden Bhutia are the “necessary party” in a suit filed for declaration by the plaintiff who is his other daughter, there is no impediment in remanding the case after following the procedure as contemplated under Rule 23 and 23A of Order 41 of CPC. 16. Once the Court found the son and daughter of Late Gyanson Rai @ Sonam Topden Bhutia are the “necessary party” in a suit filed for declaration by the plaintiff who is his other daughter, there is no impediment in remanding the case after following the procedure as contemplated under Rule 23 and 23A of Order 41 of CPC. 16. Now reverting to the arguments advanced that finding of the Trial Court has not been reversed and in absence thereto mere finding that re-trial considered necessary is not sufficient to remand the case. As per the language of Order 41 Rule 23A of CPC the remand may be directed otherwise then on a preliminary point on satisfying twin conditions; (i) reversing the decree passed by the Trial Court (ii) if the Court for the reasons so stated considered re-trial necessary. In the present case on account of non-joinder of “necessary party”, the Lower Appellate Court formed the opinion that re-trial is considered necessary, however, reversing the decree the remand has been directed. It is to observe that as per the requirement of law finding, recorded by the Trial Court is not required to be reversed infact the decree is required to be reversed. Therefore, arguments advanced by the Counsel for the appellant regarding non reversal of the finding of the Trial Court by the Lower Appellate Court is misplaced and cannot be countenanced. In addition as per the ratio of the case of P. Purushottam Reddy (supra) after amendment in CPC, the remand even dehors to the Rule 23 and 23A is permissible in exceptional cases. But in the present case, as discussed above, the Order impugned is within the purview of Rule 23 and 23A of the Order 41 CPC. Therefore, the said judgment is of no help to appellant. 17. On perusal of the facts, it is apparent that the case at hand is a case wherein the remand has been directed otherwise then only on a preliminary point, recording the finding that in the facts the re-trial is considered necessary. In the said context the judgment of Hon’ble Supreme Court in Jegannathan vs. Raju Sigamani reported in (2012) 5 SCC 540 can be profitably referred by which Apex Court has reiterated the scope of Order 41 Rule 23 A of the CPC specifying the power of the Appellate Court directing remand. In the said context the judgment of Hon’ble Supreme Court in Jegannathan vs. Raju Sigamani reported in (2012) 5 SCC 540 can be profitably referred by which Apex Court has reiterated the scope of Order 41 Rule 23 A of the CPC specifying the power of the Appellate Court directing remand. Therefore, relying upon the said judgment and looking at the nature of the finding recorded by the Lower Appellate Court, in the opinion of this Court, the case at hand is a case in which the power under Order 41 Rule 23 and 23 A read with Proviso to Section 99 of the CPC has rightly been exercised by Lower Appellate Court, having no scope of interference in this appeal. 18. It is made it clear here, that this Court has not dealt with the provision of remand, as specified in Rule 23, Rule 25, Rule 28, and 29 of Order 41 of CPC, in extentio therefore, ratio of this judgment is confined to the scope of the Order 41 Rule 23A read with proviso of Section 99 of the CPC. Those questions of law and its interpretation are left open, for decision in appropriate cases. 19. On perusal of the records and the Order sheets of the Lower Appellate Court of the present case, it appears that after joining appellant herein as a party, he appeared in the Court and permitted to cross-examine the witnesses of the plaintiff without filing any written statement. As per interim Order dated 06.06.2017 passed in first appeal, while rejecting the objection filed by plaintiff on the Commissioner’s report, the Court observed on account of affording due opportunity to plaintiff application for adjournment was rightly rejected by the Commissioner. On perusal of the provisions of Order 18 Rule 4 and Order 26 of CPC in the opinion of this Court no power are vested to the Commissioner to decide any application filed by any of the parties until directed by the Court. In the Order of appointment of the Commissioner also no such power is given to the Commissioner by the Court, therefore, Commissioner cannot decide any such application and such Order cannot be acknowledged by Court while rejecting the objection of the plaintiff. In the opinion of this Court such Order is prejudicial to the parties, therefore, it be not given affect to. 20. In the opinion of this Court such Order is prejudicial to the parties, therefore, it be not given affect to. 20. It is to observe here, the other judgments cited by the Counsel for the appellant or the respondents are not required to be adverted to in detail as it is not dealing the issues similar to this case and that too on the cost of making the judgment lengthy for no justifiable reason, therefore, those cases are not referred here. 21. Accordingly, in view of the above discussion, this appeal fails and is hereby dismissed. The Order passed by learned Lower Appellate Court is hereby upheld with an observation that the parties are at liberty to take recourse of law as permissible while deciding the suit afresh on its restoration.