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2023 DIGILAW 960 (AP)

Mandavilli Kanaka Durgamba (Died) v. Vuruma Naga Venkata Somasekhar S/o Veerabhadra Rao

2023-07-03

VENKATA JYOTHIRMAI PRATAPA

body2023
JUDGMENT : VENKATA JYOTHIRMAI PRATAPA, J. 1. This Civil Miscellaneous Appeal is filed under Order 43 Rule 1(u) of Code of Civil Procedure, 1908 (in short ‘C.P.C.’) by plaintiff Nos. 2, 3, 6 and 7 against the impugned judgment and decree in A.S. No. 116 of 2009, dated 21.03.2013 on the file of I Additional District Judge, West Godavari, Eluru (in short, appellate court) whereby the judgment and decree in O.S. No. 40 of 2003, dated 02.02.2008 on the file of Additional Senior Civil Judge’s Court, Eluru (in short, trial court) was set aside, and the appeal was allowed in favour of the defendants remanding the matter to the trial Court for a fresh disposal. 2. The appellants herein were the plaintiffs 2, 3, 6 and 7, whereas the respondents were the defendants before the trial court. For the sake of convenience, parties hereinafter will be referred to as arrayed before the trial Court. 3. Bereft of unnecessary details, facts necessary for the disposal of the appeal in brief need mention in order to appreciate the controversy involved in the appeal. 4. Case of the plaintiffs: 4.1. Originally, the plaintiff No. 1/Mandavilli Kanaka Durgamba acquired the suit schedule property by virtue of a will executed by her mother. She has been in possession and enjoyment of the said property since the death of her mother i.e. 18.04.1974. Her husband predeceased her and the couple remained issueless. 4.2. When registration authorities visited the schedule property to take some measurements, she learnt that the defendants created some documents relating to the schedule property. Then she presented a report to the police and filed a suit for permanent injunction against the defendants alleging that they are making hectic efforts to dispossess her from the schedule property. 5. Contention of the defendants: 5.1. The defendants filed their written statement denying the plaintiffs case inter-alia contending that the first plaintiff executed a gift deed in favour of first defendant on 09.12.2002 bequeathing the schedule property. He allowed the first plaintiff to stay in the house during her lifetime. The original gift deed is kept with the first plaintiff. On 01.02.2003 when the first defendant was held up at Visakhapatnam in his absence one Manepalli Venkateswara Rao and Maddipati Atchuta Rao spoiled the mind of first plaintiff and created documents in favour of their son and daughter-in-law. Procedural History 6. The original gift deed is kept with the first plaintiff. On 01.02.2003 when the first defendant was held up at Visakhapatnam in his absence one Manepalli Venkateswara Rao and Maddipati Atchuta Rao spoiled the mind of first plaintiff and created documents in favour of their son and daughter-in-law. Procedural History 6. In course of trial, both parties adduced oral and documentary evidence in support of their respective contentions. During pendency of the suit, plaintiff No. 1 died and her legal representatives made their claims in two streams. Plaintiff Nos. 4 and 5 laid their claim based on unregistered will said to have been executed by the 1st plaintiff. Plaintiff Nos. 2, 3, 6 and 7 contended that they are the legatees under the registered will executed by the testator i.e. the 1st plaintiff. The plaintiff Nos. 2 to 5 are added as legal representatives of 1st plaintiff. Later 3rd plaintiff also died and plaintiff Nos. 6 and 7 are added as legal representatives of 3rd plaintiff. 7. The trial court vide judgment and decree dated 02.02.2008 in O.S. No. 40 of 2003 decided in favour of plaintiffs holding that the registered will projected by the plaintiffs 2, 3, 6 and 7 is a genuine one, since testator herself admitted its execution. The trial court negatived the claim of plaintiffs 4 and 5 is based on unregistered will and also disbelieved the contention of 1st defendant relating to the gift deed executed by the 1st plaintiff. 8. Defendants being felt aggrieved, preferred appeal vide A.S. No. 116 of 2009 and filed I.A. No. 3439 of 2012 under Order 41, Rule 27 r/w Sec.151 of C.P.C. seeking permission to file additional documents as evidence in support of their case. According to them, those documents are material and necessary for disposal of the case. The plaintiffs opposed the I.A. 9. The appellate Court passed judgment and decree dated 21.03.2013 in favour of appellants/defendants and decided the appeal on merits considering the application under Order 41 Rule 27 of the Code. The appellate court set aside the judgment and decree of the trial court and remanded the case for deciding the suit afresh on merits. Moreover, parties were granted liberty to adduce additional evidence in support of their case in the trial court. Impugning the aforesaid judgment and decree of the appellate court, the present C.M.A. is filed before this Court. The appellate court set aside the judgment and decree of the trial court and remanded the case for deciding the suit afresh on merits. Moreover, parties were granted liberty to adduce additional evidence in support of their case in the trial court. Impugning the aforesaid judgment and decree of the appellate court, the present C.M.A. is filed before this Court. Arguments Advanced at the Bar 10. Heard Sri K. Sarvabhouma Rao, learned counsel for the appellants and Sri V. Venkata Subbaiah, learned counsel representing on behalf of Sri V. Venugopala Rao, learned counsel for the respondents. 11. Learned counsel for appellants would submit that the plaintiffs 2 to 5 are the sons of paternal aunt to the deceased first plaintiff. Whereas, the defendants are the distinct relatives to the first plaintiff. The defendants created and forged gift deed after the death of first plaintiff. The legal representatives in two sets have come up claiming the title over the property. He would contend that the matter cannot be remanded when there is a clear finding about the possession of the first plaintiff over the schedule property as on the date of filing of the suit till her death, which is crucial in a suit for permanent injunction. 12. Learned counsel would urge that the plaintiffs 2, 3, 6 and 7 are legatees under the will and that the unregistered will set up by the plaintiffs 4 and 5 was disbelieved by the Court. Hence, in such a scenario, calling a fresh finding from the trial court on the possession of legal representatives of the 1st plaintiff over the schedule property is purely unwarranted. Learned counsel would further submit that the appellate court has no justifiable reason to remand the matter and the documents filed by the defendants dated 16.03.2006 have no bearing on the suit since they are created during the pendency of the suit. 13. Refuting arguments advanced supra, learned counsel for the defendant No. 1 would submit that the first appellate court rightly exercised its jurisdiction to remand the matter to find out the legatees under the will are in possession and enjoyment of the schedule property and further submits that the Court may pass appropriate Judgment according to law. Point for Determination 14. Having heard the submissions of both learned counsel and on perusal of the material on record the points that would emerge for determination are: 1. Point for Determination 14. Having heard the submissions of both learned counsel and on perusal of the material on record the points that would emerge for determination are: 1. Whether the order of appellate court allowing additional evidence at the stage of the appeal is in accordance with Order 41 Rule 27 of the Code? 2. Whether the appellate court is right in remanding the matter to the trial court for fresh disposal having given findings on the crucial aspects of the matter in favour of the plaintiffs, if so, whether the impugned judgment is within the ambit of Order 41 Rule 23-A of the Code? Determination by the Court 15. Before going to determine the points that emerged in the present case, it is apt to define contours on maintainability of the present appeal and the scope of the court to deal with it. It is just to refer decision rendered by the Hon’ble Apex Court in Jegannathan v. Raju Sigamani and Anr. (2012) 5 SCC 540 , where a suit was filed for permanent injunction which was decreed in favour of the plaintiffs. The defendants preferred an appeal, wherein the first appellate court allowed the appeal and set aside the Judgment of the trial court and remanded the suit back to the trial court with a direction to give an opportunity to both the parties to let in evidence and then decide the suit afresh on merits. 16. Order of remand in Jegannathan was challenged by the plaintiffs by filing a Civil Miscellaneous Application before the High Court of Madras under Order 43 Rule 1(u) of Code. The High Court dismissed the appeal on the ground that the Civil Miscellaneous Appeal is not maintainable. Plaintiffs filed review petition which was dismissed. Assailing these two orders, the plaintiffs filed appeal before Hon’ble Apex Court. In that view of the matter the Hon’ble Apex Court observed in following manner: “9. In so far as the present case is concerned, the trial court had disposed of the suit on merits and not on a preliminary issue. The first appellate court set aside the judgment and decree of the trial court and directed the trial court to decide the suit afresh after giving parties an opportunity to lead evidence - oral as well as documentary. The first appellate court set aside the judgment and decree of the trial court and directed the trial court to decide the suit afresh after giving parties an opportunity to lead evidence - oral as well as documentary. The nature of the order passed by the appellate court leaves no manner of doubt that such order has been passed by the appellate court in exercise of its power under Order 41 Rule 23-A of the Code. 10. Order 43 of the Code provides for appeals from orders. Clause (u) of Rule 1 Order 43 was amended consequent upon insertion of Rule 23-A in Order 41 w.e.f. 1-2-1977. It reads as under: 1. Appeals from orders - An appeal shall lie from the following orders under the provisions of Section 104, namely: (u) an order under Rule 23 or Rule 23-A of Order 41 remanding a case, where an appeal would lie from the decree of the appellate court: It is clear from the above provision that an order of remand passed under Order 41 Rule 23-A is amenable to appeal under Order 43 Rule 1(u) of the Code. 11. The High Court relied upon a decision of this Court in Narayan v. Kumaran in holding that civil miscellaneous appeal from the order of remand was not maintainable. The High Court was clearly in error. What has been held by this Court in Narayan is that an appeal under Order 43 Rule 1(u) should be heard only on the ground enumerated in Section 100 of the code. In other words, the constraints of Section 100 continue to be attached to an appeal under Order 43 Rule 1(u). The appeal under Order 43 Rule 1(u) can only be heard on the grounds a second appeal is heard under Section 100.” [Emphasis Supplied] 17. In Balaji Singh v. Diwakar Cole and others, 2017 (3) ALT (D.N.) (SC) 1 (D.B.) the Hon’ble Apex Court drew the limits on the scope of exercise of power available in an appeal filed under Order 43 Rule 1 (u) and observed as follows: “(22) In our considered view, the only error which the first Appellate Court committed was that it went on to record the findings on merits. In our view, it was not necessary to do so while passing the order of remand. In our view, it was not necessary to do so while passing the order of remand. The reason is that once the first Appellate Court formed an opinion to remand the case, it was required to give reasons in support of the remand order as to why the remand is called for in the case. Indeed, the remand was made only to enable the Trial Court to decide the case on merits. Therefore, there was no need to discuss much less record findings on several issues on merits. It was totally uncalled for. (23) 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.” [Emphasis Supplied] 18. In the backdrop of legal position referred supra, it is vivid that the scope of this Court to examine the impugned Judgment is very narrow. It is only restricted to verify the legality of order of remand and not beyond that. This Court need not touch the merits of the case on factual facts like dealing with a first appeal. The present Civil Miscellaneous Appeal is well maintainable under Order 41 Rule 23(u) of the Code, since the nature of the order passed by the Appellate Court leaves no manner of doubt that such order has been passed by the Court in exercising its power under Order 41 Rule 23-A of the Code. Point No. 1 19. The first defendant filed I.A. No. 3439 of 2012 under Order 41 Rule 27 to receive additional evidence. The contents of I.A. would reveal that he filed some photographs, residence certificate issued by MRO and a photocopy of the registered lease deed dated 16.03.2006 executed by defendant No. 1 in favour of one Jijjuvarapu Jayaraju, President of Kumari Rural Development Association, Eluru. 20. The contents of I.A. would reveal that he filed some photographs, residence certificate issued by MRO and a photocopy of the registered lease deed dated 16.03.2006 executed by defendant No. 1 in favour of one Jijjuvarapu Jayaraju, President of Kumari Rural Development Association, Eluru. 20. It is a general principle of law that an appellate court should not traverse outside the record of the trial court in deciding the appeal, whereas an exception to this principle is Order 41 Rule 27. Any party to a suit can file a petition under Order 41 Rule 27 C.P.C. to receive additional evidence before the appellate Court. The party who approaches the Court with such prayer has to establish the reasons for non-filing of such documents before the trial Court. For quick reference, Order 41 Rule 27 of C.P.C. is extracted below: “Order 41 Rule 27: Production of additional evidence in Appellate Court: (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if: (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 21. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 21. A bare reading of Order 41 Rule 27 would go on to show that it contemplates for three limbs, where the adduction of additional evidence is warranted i.e. (1) refusal by trial court to admit evidence that ought to be admitted [Rule 27 (a)], (2) a party proves that notwithstanding due diligence such evidence was not within his knowledge or could not be produced despite due diligence before the trial court [Rule 27 (aa)] and (3) Required by the Appellate Court to enable it to pronounce judgment, or for any other substantial cause. [Rule 27 (b)] 22. The Hon’ble Apex Court in K.R. Mohan Reddy v. Net Work Inc. (2007) 14 SCC 257 interpreted the provisions in the following terms: “17. It is now a trite law that the conditions precedent for application of clause (aa) of sub-rule (1) of Rule 27 of Order 41 is different from that of clause (b). In the event the former is to be applied, it would be for the applicant to show that the ingredients or conditions precedent mentioned therein are satisfied. On the other hand if clause (b) to sub-rule (1) of Rule 27 of Order 41 CPC is to be taken recourse to, the appellate court is bound to consider the entire evidence on record and come to an independent finding for arriving at a just decision; adduction of additional evidence as has been prayed by the appellant was necessary. The fact that the High Court failed to do so, in our opinion, amounts to misdirection in law. Furthermore, if the High Court is correct in its view that the respondent-plaintiff had proceeded on the basis that the suit is entirely based on a cheque, wherefor, it was not necessary for it to file the books of accounts before the trial court, finding contrary thereto could not have been arrived at that the same was in fact required to be proved so as to enable the appellate court to arrive at a just conclusion. 18. 18. The Supreme Court in State of Gujarat v. Mahendrakumar Parshottambhai Desai, (2006) 9 SCC 772 ] relying upon Municipal Corporation of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008 held as under: (SCC p. 775, Para 10) “10.........though the appellate court has the power to allow a document to be produced and a witness to be examined under Order 41 Rule 27 CPC, the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for the purposes of pronouncement of judgment in a particular way.” 19. The appellate court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial court, but it will be different if the court itself requires the evidence to do justice between the parties. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the court. But mere difficulty is not sufficient to issue such direction. While saying so, however, we do not mean that the court at an appropriate stage would be precluded from considering the applicability of clause (b).” [Emphasis Supplied] 23. At this juncture, with the gamut of law summarized. It is relevant to extract Para No. 42 of the appellate court Judgment, which reads thus: “42. “Though the defendants also did not file any documents to prove his possession during the pendency of the suit, but at the stage of the appeal, they came with an application in I.A. 3439/2012 under Order 41 Rule 27 of C.P.C. Along with the said petition, the petitioner filed photographs and residence certificate issued by the M.R.O. and a Xerox copy of a registered lease deed dated 16.03.2006 executed by the 1st defendant in favour of one Jijjuvarapu Jayaraju, President of Kumari Rural Development Association, Eluru. These documents would prima facie show that the suit property was given on lease to a private institution for running a old age home and they are running the said old age home in the said property. These documents would prima facie show that the suit property was given on lease to a private institution for running a old age home and they are running the said old age home in the said property. These documents may throw enough light on the appreciation of evidence with regard to subject matter of controversy. So these documents are essential to decide whether the plaintiffs came into possession of the property after the death of the 1st plaintiff.” 24. The suit was disposed on 02.02.2008. First defendant being not only a party to the suit but also party to the alleged lease deed could have very well filed such document before the trial Court. The impugned judgment is silent about any warranting circumstances to permit the party to introduce such evidence at appellate stage. As held by the Hon’ble Apex Court in K.R. Mohan Reddy supra, conditions precedent for application of clause (aa) of subrule (1) of Rule 27 of Order 41 is different from that of clause (b). Learned appellate Judge allowed the application in a casual way which would enable the losing party to fill up the lacuna in the appeal which is contra to the object of Order 41 Rule 27 of C.P.C. 25. The learned Judge having given adverse finding against the alleged gift deed vide Ex.A3 through which the first defendant is claiming title over the property observing ‘no right flows from the said gift deed in favour of the first defendant’, on the other hand ordering remand of the suit to introduce additional document of the year 2006 is not in accordance with Order 41 Rule 27 of the Code. 26. To sum up, introducing additional evidence at appellate stage cannot be done in a casual and routine way. The party who wants to place such evidence at appellate stage must satisfy justifiable grounds which are enumerated under Order 41 Rule 27. Accordingly, this point is answered. Point No. 2 27. Order 41 of C.P.C provides the procedure dealing with appeals from original decrees. It empowers appellate court to order remand in three situations which are covered by Rule 23, Rule 23 (a) and Rule 25. Accordingly, this point is answered. Point No. 2 27. Order 41 of C.P.C provides the procedure dealing with appeals from original decrees. It empowers appellate court to order remand in three situations which are covered by Rule 23, Rule 23 (a) and Rule 25. The powers of the Appellate Court in the said provisions may be summarized in the following table: Order 41 Rule 23 Enables the Appellate Court to remand the case to the Trial Court when it finds that the Trial Court has disposed of the suit upon a preliminary point and decree is reversed or set aside, the Appellate Court considers it necessary in the interest of justice to remand the case Direct trial court as to: (i) what issue or issues shall be tried in the case so remanded. (ii) re-admit suit under original number. (iii) proceed to determine the suit based on the evidence available on record, subject to just exceptions. Order 41 Rule 23-A Enables the Appellate Court to remand the case to the Trial Court when it finds that the Trial Court has disposed of the suit otherwise than on preliminary point, decree is reversed and a re-trial is considered necessary. Same powers to direct as in Order 41 Rule 23 Order 41 Rule 25 Enables the Appellate Court to frame or try the issue if it finds that it is essential to the right decision of the suit and was not framed by the trial Court. Appellate Court in such case may, frame the issues and refer the same to Trial Court to take additional evidence, if required and record findings on such issues and return evidence with findings and reasons to Appellate Court for deciding appeal within the time fixed. 28. In P. Purushottam Reddy and another v. M/s. Pratad Steels Ltd. AIR 2002 SC 771 the Hon’ble Supreme Court held that an appellate Court should be circumspect in ordering remand when the case is not covered by Rule 23 or 23-A or 25 of Code of Civil Procedure. An unwarranted order of remand gives the litigation an underserved lease of life and must therefore be avoided. 29. In Shivakumar and Ors. v. Sharanabasappa and Ors. AIR 2020 SC 3102 the Hon’ble Apex Court held thus: 25.4. An unwarranted order of remand gives the litigation an underserved lease of life and must therefore be avoided. 29. In Shivakumar and Ors. v. Sharanabasappa and Ors. AIR 2020 SC 3102 the Hon’ble Apex Court held thus: 25.4. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI Code of Civil Procedure and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a retrial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case. (Emphasis is mine) 25.5. It gets perforce reiterated that the occasion for remand would arise only when the factual findings of Trial Court are reversed and a re-trial is considered necessary by the Appellate Court. The amendment which is applicable to 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.” (b) delete the words “if it thinks fit” occurring after the words “the Appellate Court may.” [Emphasis Supplied] 30. In Arvind Kumar Jaiswal (D) through LRs. In Arvind Kumar Jaiswal (D) through LRs. v. Devendra Prasad Jaiswal Varun, 2023 Live Law SC 112 enumerated certain circumstances under which an order of remand can be passed as follows: “An order of remand prolongs and delays the litigation and hence, should not be passed unless the appellate court finds that a re-trial is required, or the evidence on record is not sufficient to dispose of the matter for reasons like lack of adequate opportunity of leading evidence to a party, where there had been no real trial of the dispute or there is no complete or effectual adjudication of the proceedings, and the party complaining has suffered material prejudice on that account. Where evidence has already been adduced and a decision can be rendered on appreciation of such evidence, an order of remand should not be passed remitting the matter to the lower court, even if the lower court has omitted to frame issues and/or has failed to determine any question of fact, which, in the opinion of the appellate court, is essential. The first appellate court, if required, can also direct the trial court to record evidence and finding on a particular aspect/issue in terms of Rule 25 to Order XLI, which then can be taken on record for deciding the case by the appellate court.” [Emphasis Supplied] 31. Order 41 Rule 23-A of the Code authorizes the appellate court to remand the suit to the trial court though the said suit has been disposed of on merits. When the decree is reversed in appeal, when the appellate court considers that the re-trial is necessary, then it may order remand of the suit to the trial court. In so far as the present case is concerned, the trial court has disposed of the suit on merits by giving finding on every issue that is framed. 32. The instant suit is filed for permanent injunction, the appellate court set aside the judgment and decree of the trial court and directed the trial court to decide the suit afresh after giving an opportunity to the parties to lead evidence. The appellate Court has every jurisdiction to remand the case whenever it is warranted, by recording the reasons as to why the party should be relegated before the trial court for fresh disposal of the suit. The appellate Court has every jurisdiction to remand the case whenever it is warranted, by recording the reasons as to why the party should be relegated before the trial court for fresh disposal of the suit. When the appellate court sets aside the trial judgment directing the parties to approach the trial court for fresh disposal of the case, it would not only cause serious prejudice, but also delay the proceedings. 33. Coming to the facts of the case, the appellants who are the plaintiffs 2, 3, 6 and 7 set up their claim on the registered will said to have been executed by the first plaintiff in their favour bequeathing the schedule property. The Trial Court upheld the said will. Contra, the first defendant laid his claim based on the gift deed said to have been executed by the first plaintiff relating to the schedule property. The learned appellate Judge gave a clear finding relating to the said gift deed. It is relevant to extract Para No. 35 of the appellate court Judgment: “35. From these circumstances, it is reasonable to drawn an inference that the gift is incomplete and no rights would flow from the original of Ex.A3 even if it is assumed that it was executed by the 1st plaintiff. Since no right flows from original of Ex.A3 in favour of the 1st defendant and as the absolute title of the plaintiff was an admitted fact and as the absolute title of the plaintiff was an admitted fact, I have no hesitation to hold that the possession of the 1st plaintiff over the suit property is referable to a lawful title and the 1st plaintiff was in possession and enjoyment as on the date of filing of the suit till her death.” 34. In the present case, having upheld the finding of the trial court relating to Ex.A3 through which the defendant No. 1 claiming his title over the schedule property quite contra to the same without any discussion remanding the matter based on document filed by the defendant No. 1 that he has given lease to some third parties appears to be uncalled for. Though the power of the appellate court to exercise jurisdiction under Order 41 Rule 23-A is discretionary, it should not be exercised arbitrarily. 35. Though the power of the appellate court to exercise jurisdiction under Order 41 Rule 23-A is discretionary, it should not be exercised arbitrarily. 35. In the light of the aforementioned premises, this court is of the considered view that the remand order passed by the appellate Court is bad in law. Consequently, the matter is remanded to the first appellate court with a direction to decide the first appeal on merits without being influenced by any observations made by this Court. Accordingly, the appeal is liable to be allowed. 36. In result, appeal is allowed. Impugned judgment of first Appellate Court on the point of remand is set aside. The first Appellate Court is directed to dispose of the appeal on merits, after giving fair opportunity to both the counsel to submit their arguments, within two (02) months from the date of receipt of copy of this judgment. 37. In the circumstances, both parties shall bear their own costs. 38. As a sequel, interlocutory applications pending, if any, shall also stand closed.