JUDGMENT 1. This misc. appeal under Order 43 Rule 1(u) read with Section 151 CPC has been directed against the impugned judgment dated 04.10.2001 passed by the Court of Additional District Judge, Aklera, District Jhalawar in regular appeal No.8/2000 by which the appeal filed by the defendant-respondent was allowed and after setting aside the judgments dated 04.06.1994 and 18.10.2000 passed by the Civil Judge (Junior Division), Jhalawar in original suit No.95/1993, the case was remitted back to the trial Court for fresh adjudication. 2. Facts, in brief, of the case are that the plaintiff (appellant herein) instituted a suit for perpetual injunction under the Specific Relief Act for removal of wall against the defendant before the Court of Civil Judge (Junior Division), Aklera, District Jhalawar, which was decreed on 04.06.1994 and the defendant was directed to remove the wall as described in Para No.1 of the plaint and not to cause any hinderance or interference with the possession of the plaintiff and the defendant was further directed to pay cost of Rs.500/-. 3. Feeling aggrieved by the judgment dated 04.06.1994, the defendant submitted Regular First Appeal before the Court of Additional District Judge, Aklera, District Jhalawar and also submitted an application under Order 41 Rule 27 and 28 CPC for taking certain documents on record and prayed for remanding the matter to the trial Court for fresh adjudication of the suit after giving opportunity of hearing to both sides to lead their evidence and to decide the suit afresh. And accordingly the suit was remanded back by the Appellate Court to the trial Court vide judgment dated 04.01.2000. 4. After remand of the matter, no fresh evidence was produced by the defendant before the trial Court, hence, the opportunity of defendant for producing evidence was closed on 12.05.2000 and case was posted for final arguments. 5. Thereafter, defendants submitted applications under Sections 151 and 152 CPC, which were dismissed by the trial Court vide order dated 02.06.2000 and 11.10.2000 respectively and finally arguments were heard and on the basis of issues and the evidence available on the record, the trial Court decreed the suit vide judgment and decree dated 18.10.2000 directing the defendant to remove the wall and not to cause any obstruction in the possession of the plaintiff with regard to the disputed land mentioned in Para No.1 of the plaint. 6. 6. Aggrieved by the judgment and decree dated 18.10.2000, the defendant submitted Regular First Appeal before the Court of Additional District Judge, Aklera, District Jhalawar and the same was allowed vide judgment and decree dated 04.10.2001 and again the matter was remanded back to the trial Court with a direction to frame additional issue and to decide it afresh after affording opportunity of hearing to both sides. 7. Feeling aggrieved by the impugned judgment and decree dated 04.10.2001, instant appeal has been submitted. 8. Learned counsel for the appellant argued that there was no occasion with the Appellate Court to pass the judgment of remand. Both parties have gone to the trial Court fully knowing the rival case and had led all the evidence in support of their case. No request for framing of additional issue was made before the trial Court when the suit remained pending before it for a considerable long time and on the basis of the evidence, the judgment and decree was passed on 04.06.1994. 9. Counsel further submitted that against the said judgment and decree dated 04.06.1994 the defendant submitted Regular First Appeal before the Court of Additional District Judge, Aklera, District Jhalawar and the matter was remitted back to the trial Court with certain directions, which were not complied with by the defendant and no fresh and additional evidence was produced on the record. Hence, the trial Court rightly decreed the suit again in favour of the plaintiff. Counsel further submitted that there was no ground available with the Appellate Court again to remand the matter, to decide it again and again afresh. The matter was already remanded on the request of defendant and defendant had failed to produce fresh evidence in support of his contentions. Lastly, he argued that the matter may kindly be send back to the Appellate Court to decide the appeal on its merits. 10. None is there to oppose this appeal despite service of notice. It appears that the defendant is not interested in pursuing with the matter, that is why, neither the evidence was produced before the trial Court after first remand by the appellate Court and again after remand of the matter, none has put appearance before this Court while this appeal is pending before this Court since last two decades. 11. Hence, this Court is left with no option except to decide the matter on merits. 11. Hence, this Court is left with no option except to decide the matter on merits. 12. I have heard counsel for the appellant and perused the record. 13. Rules 23, 23-A, 24, 25 and 26 of Order 41 C.P.C. deal with the remand of cases by the appellate court. Rule 23 deals with a case of remand where the suit has been disposed of on a preliminary point and Rule 23-A which was inserted by CPC Amendment Act of 1976 deals with the powers of the appellate court with regard to remand in cases disposed of otherwise on a preliminary point and provides that the appellate court shall have the same powers of remand as under Rule 23. Rule 24 enables and empowers the appellate court if the evidence on record is sufficient to pronounce judgment even after resettling the issue, if necessary. Rule 25 deals with the cases where it appears to the appellate court that the trial court has omitted to frame or try an issue or to determine any question of fact which is essential to the right decision of the suit on merits, the appellate court may, if necessary, frame such an issue and refer the same for trial to the court below and in such case it shall direct such court to try such issue and to return the evidence together with its findings thereon and reasons therefor within the time fixed by it or extended by it. 14. In P. Purushottam Reddy v. Pratap Steels Ltd., reported in AIR 2002 SC 771 , their Lordships of the Hon’ble Apex Court have considered these rules and have held as under :- "Prior to the insertion of Rule 23-A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 CPC. Rule 23 applies when the trial Court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial Court, are required to be returned to the appellate court. However, still it was a settled position of law before the 1876 Amendment that the Court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. 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 0) 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 recourse to its inherent powers to make a remand because, as held in Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati ( AIR 1965 SC 364 ), it is well settled that inherent power can be availed of ex debito justitia 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 Rule 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 sent 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." 15. Thus, it is apparent and well settled that where the evidence on record is sufficient to decide the matter and controversy in between the parties, the appellate Court should not remit the case to the trial Court. It should itself decide the matter. If it is necessary to frame additional issue, the appellate court can very well frame issues which appear to it necessary and then decide the matter on the evidence on record if there is sufficient evidence. But even where it comes to the conclusion that some important issue has been left out or omitted by the trial court and it is essential to frame such an issue and the evidence on, such an issue has not been led by the parties or is in-sufficient, then it can very well frame additional issue and remit the additional issue/issues for taking evidence on the additional issue/issues with the direction to send back evidence along with findings on such issue but it does not empower the appellate court to set aside the entire judgment and decree passed by the trial Court and the procedure for decision on the additional issue has also been given in Rule 26 of Order 41 CPC. 16. In the instant case, learned first appellate court has completely ignored and given a go-bye to the aforesaid provisions of law. It has set aside the entire judgment and decree passed by the trial court which it was not competent to do as per the aforesaid provisions and the law laid down in this behalf by the Hon’ble Apex Court. 17. It has set aside the entire judgment and decree passed by the trial court which it was not competent to do as per the aforesaid provisions and the law laid down in this behalf by the Hon’ble Apex Court. 17. In the instant case, both the parties led the evidence and produced the documents before the trial Court and on the basis of the same, the suit was decreed on 04.06.1994. 18. Despite of remand of matter, no sincere efforts were made by the defendant to produce any additional evidence or document. Hence, again the trial Court decreed the suit in favour of the plaintiff. If at all, defendant was aggrieved, then, he could have approached the Court to decide the issue in question on its merits. 19. The First Appellate Court appears to have not kept in view the relevant provisions under which it could remand the case and has quashed the entire decree passed by the trial Court and has remitted the case for deciding it afresh, which is neither justified nor sustainable in the face of law laid down by the Hon’ble Supreme Court in the case of P. Purushottam Reddy (supra). 20. In view of the above discussions, this appeal deserved to be and is hereby allowed. 21. The judgment and order dated 04.10.2001 passed by the First Appellate Court quashing the entire judgment and decree dated 04.06.1994 is hereby quashed and set aside. And the Appellate Court is directed to dispose of the appeal in accordance with law. 22. Parties are directed to appear before the Appellate Court on 27.05.2022. 23. Since the defendant/respondent has remained unrepresented before this Court, the Appellate Court is directed to issue fresh notice to the defendant for its appearance to argue the appeal filed by it. 24. Since the suit was filed 30 years back in the year 1992, it is expected from the Appellate Court to decide the suit expeditiously as early as possible preferably within a year from the date of receipt of certified copy of this order. 25. Stay application and all pending application(s) stand disposed of. 26. Record of the Court concerned be sent back forthwith.