JUDGMENT 1. The captioned miscellaneous second appeal is filed by the appellant/plaintiff questioning the remand order passed by the first appellate court in R.A.Nos.78 and 79 of 2009. 2. Brief facts leading to the case are: The present appellant/plaintiff file suit for declaration and injunction claiming right and title in suit land bearing Sy.No.43/A totally measuring 5 acres 1 gunta on the basis of the registered sale deed dtd. 26/3/2000 for sale consideration of Rs.60,000.00 executed by defendant Nos.4 and 5. The appellant/plaintiff contended that pursuant to acquisition of valid right and title, a varadi was submitted to effect the mutation in terms of the registered sale deed in his favour. It is at this juncture, defendant Nos.1 to 3 filed objections to the said varadi, objecting for effecting mutation in terms of acquisition of right and title based on a registered sale deed. The appellant/plaintiff also contended that respondent Nos.1 to 3 interfered with the possession over the purchased land by denying title of appellant/plaintiff. This compelled the appellant/plaintiff to file suit seeking declaration and injunction in O.S.No.16/2006. 3. After receipt of summons, defendant No.2 filed written statement and defendant Nos.1 and 3 adopted the same. Defendant No.6 filed an independent written statement and claimed that husband of defendant No.5 namely Hampamma has bequeathed the suit land under Will dtd. 9/12/1995 and therefore, defendant No.6 claims exclusive ownership over the suit land measuring 5 acres 1 gunta and consequently disputed the title of defendant Nos.4 and 5. 4. The appellant/plaintiff in support of his contention examined himself as P.W.1 and examined three independent witnesses as P.Ws.2 to 4 and relied on documentary evidence vide Exs.P1 to P12. Defendants examined in all five witnesses and relied on documentary evidence vide Exs.D1 toD19. 5. The trial court having assessed oral and documentary evidence answered issue Nos.1 to 4 in the affirmative and recorded a finding that appellant/plaintiff has succeeded in establishing his title over the suit schedule-A property. The trial court also held that appellant/plaintiff succeed in proving that defendant No.5 who is wife of Karbasayya inherited her husband's property. The trial court also recorded a finding that appellant/plaintiff succeeded in proving that defendant Nos.4 and 5 have jointly executed registered sale deed for sale consideration of Rs.60,000.00 and defendant Nos.1 to 3 are illegally obstructing lawful possession and enjoyment of the appellant/plaintiff over the suit schedule property. 6. The trial court also recorded a finding that appellant/plaintiff succeeded in proving that defendant Nos.4 and 5 have jointly executed registered sale deed for sale consideration of Rs.60,000.00 and defendant Nos.1 to 3 are illegally obstructing lawful possession and enjoyment of the appellant/plaintiff over the suit schedule property. 6. Defendant No.6 having set up a Will by specifically alleging that husband of defendant No.5 namely, Karbasayya bequeathed the suit land under Will dtd. 9/12/1995 did not let in any rebuttal evidence to prove title over the suit schedule property based on a Will. Defendant No.6 having failed to contest the suit preferred an appeal before the first appellate court in R.A.No.78/2009 and other defendants preferred appeal in R.A.No.79/2009. The first appellate court has allowed both the appeals and has remitted the matter to the trial court to enable defendant No.6 to lead evidence on Will. The present appellant/plaintiff feeling aggrieved by the remand order is before this court. 7. Learned counsel for the appellants/plaintiffs would vehemently argue and contend before this court that defendant No.6 who preferred an appeal has not at all assigned any sufficient reasons for having failed to contest the proceedings. Learned counsel for the appellants would submit that present respondent No.6/defendant No.6 failed to examine any witness to the Will and has also not stepped into the witness box. He would submit to this court that respondent No.6/defendant No.6 has not offered any satisfactory explanation for having failed to contest the proceedings. Therefore, he would submit to this court that remand order does not satisfy the ingredients of Order XLI Rule 23 to 27 of CPC. He would submit that the trial court has exhaustively dealt with clinching evidence on record and has adjudicated the case on merits. Therefore, he would submit to this court that only to enable the party to lead evidence in the case, a well considered judgment cannot be set aside and the matter cannot be remitted. He would also submit to this court that, it is a trite law that first appellate court can venture into remanding the matter only after recording a finding that the judgment of the trial court is erroneous and is liable to be reversed or set aside. He would submit to this court that this is a condition precedent for passing order under Order XLI Rule 23A of CPC. 8. He would submit to this court that this is a condition precedent for passing order under Order XLI Rule 23A of CPC. 8. Per contra, learned counsel for the respondents/defendants supporting the remand order passed by the first appellate court would submit to this court that, to do substantiate justice and having regard to valuable rights of the respondents/defendants in the property, the first appellate court has exercised judicial discretion and has ordered for remand. Therefore, he would submit to this court that the same would not warrant any interference at the hands of this court. 9. Heard the learned counsel for the appellants, learned counsel for the respondents and perused the judgment under challenge. 10. The appellants/plaintiff is asserting right and title on the basis of the sale deed executed by defendant No.5, namely Hampamma w/o Karbasayya, whereas defendant No.6 is asserting right and title on the ground that husband of defendant No.5 namely, Karbasayya has bequeathed the suit land in his favour under Will dtd. 9/12/1995. Having set up a Will before the trial court, respondent No.6/defendant No.6 has not chosen to contest the proceedings. The trial court having assessed oral and documentary evidence has dealt with the rival contentions and has come to the conclusion that appellant/plaintiff succeeded in proving the right and title over the suit schedule property pursuant to sale deed executed by defendant No.5 and also defendant No.4 for valuable sale consideration of Rs.60,000.00. It appears, before the first appellate court, respondent No.6/defendant No.6 claim that no opportunity was given to him to lead evidence and substantiate his claimed that he has acquired valid right and title pursuant to the Will executed by husband of defendant No.5. The other defendants i.e., defendant Nos.1 to 3 have also filed additional evidence by contending that Karbasayya had no right and title in the suit schedule property. 11. The defendants have challenged the judgment and decree of the trial court which is well considered judgment. The trial court has dealt with issues 1 to 8 as well as additional issues 1 to 3 and has adjudicated rival claims of the parties and has decreed the suit filed by the present appellant/plaintiff. 11. The defendants have challenged the judgment and decree of the trial court which is well considered judgment. The trial court has dealt with issues 1 to 8 as well as additional issues 1 to 3 and has adjudicated rival claims of the parties and has decreed the suit filed by the present appellant/plaintiff. Now the question that would arise before this court is, whether the first appellate court was justified in remanding the matter to the trial court on the premise that defendant No.6 was not given an opportunity to lead evidence on Will. My answer is no. The remand is possible only when the first appellate court arrives at a finding that judgment and decree of the trial court is erroneous and liable to be reversed or set aside. It is a trite law that this is a condition precedent for passing order under Order XLI Rule 23A. The first appellate court has not reversed the finding recorded by the trial court on issues 1 to 7 and additional issues 1 to 4. Therefore, I would also find that there is no compliance of mandatory requirement contemplated under Order XLI Rule 30 and 31 of CPC. 12. If a parties intend to vent their grievance by contending that opportunity was not given, whether that itself would constitute a ground to set aside a well considered judgment rendered on merits and consequently remand the matter to the trial court. My answer is again no. Rule 23 of Order XLI comes into operation only when a case determined by the trial court on preliminary point. Rule 23 does not apply in cases where all the issues framed by the trial court are determined and findings recorded thereon. The necessity of remanding the case would not arise at all on the premise that party was not given proper opportunity to adduce evidence. Time and again this court and Hon'ble Apex Court have repeatedly held that first appellate court being final fact finding authority has to make endeavour to dispose of the case by itself and correct commissions and omissions made by the trial court. 13. The first appellate court has to examine the hardship that would be caused to the plaintiff who has succeeded in the case after full-fledged trial. A remand would not be justified in the interest of justice more particularly when the present suit is filed in 2006. 13. The first appellate court has to examine the hardship that would be caused to the plaintiff who has succeeded in the case after full-fledged trial. A remand would not be justified in the interest of justice more particularly when the present suit is filed in 2006. Therefore, the remand order would cause immense hardship to the appellant/plaintiff. 14. Even if the first appellate court was of the view that defendant No.6 needs to be given one opportunity to substantiate his claim and establish his right and title pursuant to Will executed by husband of defendant No.5, then this court is of the view that nothing precluded the first appellate court to call upon defendant No.6 to lead evidence in terms of Will. The Co-ordinate Bench of this court in the case of Shanthaveerappa vs K.N. Janardhanachari1 has held that if additional evidence is allowed to be produced, the first appellate court may either ILR 2007 KAR 1127 take such evidence or direct the court of first instance against whose decree, the appeal is preferred or any other subordinate court to take such evidence and send it to the first appellate court, as contemplated under Rule 28 of Order XLI of CPC. In the said judgment, the Co-ordinate Bench was of the view that the first appellate court should have acted under Order XLI Rule 27 to 29 of CPC. Therefore, in the said case the court was of the view that remanding the whole case under Order XLI Rule 23A was unwarranted. Para 11 in the said judgment would have a bearing on the remand order which is under challenge before this court. Para 11 reads as under: "11. An appeal is a continuation of the original proceedings. In effect the entire proceedings are before the Appellate Court and it has power to re-appreciate the evidence. It has the power to amend the pleadings, frame issues, resettle issues, delete issues, receive evidence by way of additional evidence, record evidence, summon witnesses and documents, order for commission, pass interim orders. It can also take note of subsequent events. In addition to the power of trial Court, it has been vested with the power of remand. Power to set aside, modify, reverse and affirm the judgment of the trial Court. It can also take note of subsequent events. In addition to the power of trial Court, it has been vested with the power of remand. Power to set aside, modify, reverse and affirm the judgment of the trial Court. It also has the power to entertain Cross Appeal and power to grant relief to a party to the proceedings who has not preferred appeal and set aside the findings recorded against the respondent in the appellant's appeal. Thus, the power of the first Appellate Court is unlimited. The reason being that it should be able to meet any contingency or situation and pronounce judgment finally in order to do complete justice between the parties. It cannot plead or feel helpless to meet any situation arising in a case to resolve the dispute between the parties. That is the ambit and scope of the jurisdiction of the first Appellate Court. Therefore, the legislature has entrusted a very important duty to the first Appellate Court, and it is for that Court to decide finally all questions of fact on which the disposal of the suit might depend. To order retrial of a case is a serious matter and may mean considerable waste of public time. An order of remand should not be taken to be a matter of course. The power of remand should be sparingly exercised. The endeavor should be to dispose of the case finally by the first Appellate Court itself. When the trial Court after considering the evidence, has come to a conclusion, the Appellate Court should not ordinarily remand the case. It should see first whether it can dispose of the case itself under Order 41 Rules 24 to 27 CPC. Only if it is not possible to do so and it is necessary in the interests of justice to remit the suit, remand should be resorted to. When additional evidence is tendered in appeal, the Court should act under Rule 28 and not remand the whole case under this rule. 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. 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. An order of remand could be made only if the finding of the lower Court is reversed in appeal. Where there is no reversal of the finding, the Appellate Court cannot proceed under this rule and remand the case for a fresh inquiry on the ground that a finding is necessary on a point not dealt with in the judgment or that the inquiry has been inadequate. A remand for the purpose of adducing fresh evidence to explain the evidence on record, where it was unambiguous or to cover up deficiencies or to fill in gaps is not warranted by this rule. If an issue can be decided by the Appellate Court on admitted facts, the empty formality of remand must be eschewed to advance the cause of justice." 15. If the principles laid down by the Co-ordinate Bench of this court in the judgment cited supra are examined, this court is of the view that the first appellate court was not justified in remanding the matter only to enable defendant No.6 to lead evidence. The first appellate court is expected to exercise its power within the confined Rule 23 to 26A of Order XLI and is required to decide the case at the appellate stage itself. The tendency of remanding a case after setting aside the judgment of the trial court and directing de novo trial is against the tenure of law. If Rule 23 to 29 empowers first appellate court to frame issues, allow amendment of pleadings and receive additional evidence, the first appellate court without assigning any reasons cannot casually remand the matter. What can be done at the appellate stage need not be remanded back to the trial court. Sec. 107(2) of CPC does invest the Appellate Court with some powers that are conferred on Court on original jurisdiction. What can be done at the appellate stage need not be remanded back to the trial court. Sec. 107(2) of CPC does invest the Appellate Court with some powers that are conferred on Court on original jurisdiction. It is a trite law that it is a bounden duty of the Appellate Court to see whether the evidence taken as a whole can reasonably justify the conclusion which the Trial Court arrived at or whether there is an element of improbability arising through a number of circumstances which in the opinion of the Court outweighs such finding. 16. Defendant No.6 had ample opportunity to make a claim by adducing evidence in trial court. This court would find that there were absolutely no materials placed on record by defendant No.6 indicating as to why he has not led evidence in support of Will. The present case on hand would only lead to an inference that the first appellate court has casually remanded the matter. The remand order is contrary to the principles laid down by this court in the judgment cited supra. 17. In that view of the matter, the miscellaneous second appeal is allowed. The remand order dtd. 4/12/2012 passed in R.A.Nos.78 and 79 of 2009 by the II Additional Fast Track Court, Koppal is set aside. The matter is remitted back to the first appellate court and the first appellate court is directed to reconsider additional evidence and also claim of defendant No.6 by strictly following the principles laid down by this court in the judgment cited supra.