JUDGMENT : The present Appeal is preferred by the appellant aggrieved by the Decree and Judgment dated 28.11.2016 passed in A.S.No.50 of 2013 on the file of I Additional District Judge, Srikakulam preferred against the decree and judgment dated 05.06.2013 passed in O.S.No.88 of 2008 on the file of Additional Senior Civil Judge, Srikakulam. 2. Heard Sri P.V. Raghu Ram, learned counsel appearing for the appellant and Sri P. Durga Prasad, learned counsel appearing for the respondents. 3. The appellant is the plaintiff No.1 and the respondent No.1 is the defendant and respondent No.2 is the plaintiff No.2 in O.S.No.88 of 2008 on the file of Additional Senior Civil Judge, Srikakulam (for short “the trial Court”). 4. For convenience and clarity, the parties are hereinafter referred to as arrayed in the suit. 5. The plaintiffs No.1 and 2 are the brothers. They have RCC building in Narasannapeta. The defendant constructed a house without obtaining any permission from Gram Panchayat and he violated the rules he did not leave side setbacks to eastern side wall preventing air and light to the plaintiffs house on western side. After knowing the same, the plaintiffs came down to Narasannapeta and requested the defendant not to construct the building without following rules. Then, the plaintiffs approached the Gram Panchayat Officials and informed the matter but in vain. As the Panchayat officials has not taken any action against the defendant, the plaintiffs filed suit for declaration. 6. The defendant filed written statement denying the allegations made in the plaint. He stated that he purchased the vacant site and after obtaining approved plan from the Gram Panchayat, he constructed building. The plaintiffs’ building was Kalyana Mandapam and it is not a residential building. The same was constructed without leaving any gap between their site and the defendant’s site. The defendant already completed 3 slabs by investing huge amounts obtained from the banks. Therefore, prayed to dismiss the suit. 7. Basing on the above pleadings, the following issues were framed by the trial Court : 1) Whether this Court has no jurisdictions try the suit? 2) Whether the suit is bad for non-joinder of necessary parties? 3) Whether the plaintiff is entitled for declaration as prayed for? 4) Whether the plaintiff is entitled for mandatory injunction as prayed for? 5) To what relief? 8. 2) Whether the suit is bad for non-joinder of necessary parties? 3) Whether the plaintiff is entitled for declaration as prayed for? 4) Whether the plaintiff is entitled for mandatory injunction as prayed for? 5) To what relief? 8. During course of trial, on behalf of the plaintiffs, the 1st plaintiff was only examined as PW.1 and Exs.A1 and A2 were marked. On behalf of defendant’s, DWs.1 to 3 were examined and Ex.B1 to Ex.B6 were marked. 9. The trial Court upon considering the evidence adduced on either side and on considering the contentions made by both the counsels, decreed the suit with costs. Aggrieved by the same, the defendant/appellant preferred an appeal vide AS No.50 of 2013 on the file of I Additional District Judge, Srikakulam (for short “the first appellate Court”) on ground that the judgment of trial Court is contrary to the law, weight of evidence ad probabilities of the case and that the trial Court miserably failed to appreciate the evidence of DWs.1 to 3 and it also failed to consider that the defendant constructed the building after obtaining Ex.B5 approved plan and he constructed the building a per the norms of said approved plan without any deviation and that the Gram Panchayat, Narasannapeta is necessary party to the suit and the plaintiffs failed to take any steps to implead it as party in the suit. The said appeal was allowed by setting aside the decree and judgment dated 5.6.2013 in O.S No.88 of 2008 of the trial Court and the matter was directed to be remanded back to the said trial Court. Hence, the present appeal came to be filed. 10. Learned counsel for the appellant submits that the first appellate court in ordering remand to the trial Court is contrary to law, weight of evidence and probabilities of case. He further submits that the burden is on the defendant in the suit to prove that he has constructed building within the parameters of the plan approved by the Gram Panchayat. Learned counsel for the appellant submits that the first appellate court in ordering remand to the trial Court is contrary to law, weight of evidence and probabilities of case. He further submits that the burden is on the defendant in the suit to prove that he has constructed building within the parameters of the plan approved by the Gram Panchayat. The appellant has not taken the plea that the Gram Panchayat is necessary party except an evasive denial made in the written statement and not contested the suit on the said ground and he cannot agitate first time in the lower appellate court that the Gram Panchayat is necessary party where it has no role to play in the suit when there is sufficient evidence on record to show that the defendant has constructed side walls without leaving the setbacks. He further contended that the role of the Gram Panchayat is very limited in the present case and only to the extent of the approved plan was given or not and it is not in dispute and hence the Gram Panchayat is not necessary party to the suit. The first appellate court miserably failed to apply the provisions of Order 41 Rule 23 to 25 while remanding the matter to the trial Court while the scope of remand is very limited. He further submits that the first appellate court has not exercised the discretionary power in judicious manner while remanding the matter and the Hon’ble Supreme Court has deprecated the remand in several cases observing that the remand cannot be made as a matter of course. He further submits that the first appellate court ought to have been entertained petition under Order 1 Rule 10 CPC itself if the Gram Panchayat is necessary or proper party instead of remanding the suit and also ought to have seen that the admitted facts need not be proved under Section 58 of the Evidence Act where the respondent herein has admitted that he has not left side setbacks and constructed the walls and hence remand of the suit is not necessitated. Therefore, learned counsel requests this Court to pass appropriate orders. 11. Therefore, learned counsel requests this Court to pass appropriate orders. 11. To support his contentions, learned counsel has placed reliance on the judgment of Hon’ble Supreme Court reported in Municipal Corporation Hyderabad Versus Sunder Singh, (2008) 8 Supreme Court Cases 485, wherein the Apex Court held that : It was pointed out that by an interim order dated 27.8.1998, the appellant -Corporation has been receiving a sum of Rs.5,000/-per week from the respondent and thus this Court may not exercise its jurisdiction under Article 136 of the Constitution of India. Order XLI Rule 23 of the Code reads thus: "Remand of case by Appellate Court.--Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject all just exceptions, be evidence during the trial after remand." The amendment which is applicable for the State of Andhra Pradesh is same as that of the State of Madras, which reads as under: "(a) After the words "the decree is reversed in appeal", insert the words "or where the Appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case"; and (b) delete the words "if it thinks fit", occurring after the words "the Appellant Court may"." 10. Order XLI Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court. 12. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court. 12. Per contra, learned counsel appearing for the respondent submits that the first appellate Court has rightly remanded the matter to the trial Court since the judgment and decree of the trial Court is correct and proper in the eye of law. Therefore, he submits that it is the duty of the trial Court to examine the issue and pass the orders afresh in accordance with law and in view of the same, the first appellate court has rightly remanded the matter to the trial court. Hence, prayed to dismiss the appeal. 13. To support his contention, learned counsel for the respondent has also relied upon a decision reported in Kalyan Kumar Bera Versus Milan Kumar Khutia and others, 2022 0 Supreme (Cal) 1256, wherein the High Court of Calcutta has held that : Whether a person is a necessary party, is a question of fact depending upon the relief claimed in the suit. But once it is established that the said person is a necessary party to the suit, it becomes a question of law and therefore can be raised for the first time in appeal. 16. Now, question that arises is as to whether it would be proper to dismiss the appeal or to remand the suit. Had the issue say 'whether the suit was bad for non-joinder of necessary party' been framed, the plaintiff could have taken appropriate steps. Since no such issue had been framed, we think it proper to give an opportunity to the plaintiff/appellant to implead AITC, Sahapur Unit. Thus, in our opinion, a remand appears to be the proper course to avoid multiplicity of suits. The judgment relied upon on behalf of the respondents is distinguishable on facts. 14. Since no such issue had been framed, we think it proper to give an opportunity to the plaintiff/appellant to implead AITC, Sahapur Unit. Thus, in our opinion, a remand appears to be the proper course to avoid multiplicity of suits. The judgment relied upon on behalf of the respondents is distinguishable on facts. 14. He also relied upon another decision of Hon’ble Supreme court reported in Balaji Singh versus Diwakar Cole and others, (2017) 4 Supreme 48 , wherein the Hon’ble Apex Court held that: “..So far as the impugned order is concerned, the High Court, in our view, committed jurisdictional error when it also again examined the case on merits and set aside the judgment of the first Appellate Court and restored the judgment of the Trial Court. The High Court, in our opinion, should not have done this for the simple reason that it was only examining the legality of the remand order in an appeal filed under Order 43 Rule 1(u) of the Code. Indeed, once the High Court came to a conclusion that the remand order was bad in law then it could only remand the case to the first Appellate Court with a direction to decide the first appeal on merits. 24) The High Court failed to see that when the first Appellate Court itself did not decide the appeal on merits and considered it proper to remand the case to the Trial Court, a fortiori, the High Court had no jurisdiction to decide the appeal on merits. Moreover, Order 43 Rule 1(u) confers limited power on the High Court to examine only the legality and correctness of the remand order of the first Appellate Court but not beyond that. In other words, the High Court should have seen that Order 43 Rule 1(u) gives a limited power to examine the issue relating to legality of remand order, as is clear from Order 43 Rule 1(u) which reads thus:-“1(u) an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court” 15. On perusing the entire material on record, this Court observed that, admittedly, the Gram Panchayat, which approved the plan of the defendant marked as Ex.B5 on 29.5.2008 i.e., after one month from the date of filing the suit hence he is not a party to the suit. On perusing the entire material on record, this Court observed that, admittedly, the Gram Panchayat, which approved the plan of the defendant marked as Ex.B5 on 29.5.2008 i.e., after one month from the date of filing the suit hence he is not a party to the suit. It is also an admitted fact that prior to filing of the suit, defendant filed Caveat Petition and plaintiffs obtained status quo and even then defendant continued his construction and completed building. Even then also the appellant did not implead the Gram Panchayat as a party to the suit. The plaintiffs even did not choose to examine any official Gram Panchayat, before the trial Court as a witness. Moreover, it is for the Gram Panchayat to take action against the defendant for the alleged violations in leaving the setbacks for the building of the defendant. So, it can be held that the Gram Panchayat is a necessary party to the suit and without its presence correct adjudication of the matter is impossible. Moreover Order 43 Ruel 1(u) confers limited power on the High Court to examine only the legality and correctness of the order of the first appellate court but not beyond that. In other words, the High Court should have seen that Order 43 Rule 1(u) gives a limited power to examine the issue relating to legality of remand order as is clear from Order 43 Rule 1(u) which reads as under: “1(u) an order under Rule 23 or Rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court.” 16. Having regard to the facts and circumstances of the case, it is proper to remand back the matter to the trial Court to give a chance to the plaintiffs to implead the Gram Panchayat as a party to the suit for proper adjudication of the matter. Therefore, I do not find any reason to interfere with the judgment of the first appellate court and hence the instant civil miscellaneous appeal is liable to be dismissed. 17. Accordingly, the ‘Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. As a sequel, all the pending miscellaneous applications shall stand closed.