ORDER 1. Present miscellaneous appeal has been filed under Order 43 rule 1(u) of CPC against judgment and decree dated 1.8.2011 passed in RCA No.60-A/06, whereby, judgment and decree passed by trial Court on 24.12.2005 in RCS No.8-A/2004 has been set aside and case has been remanded back to trial Court on the grounds mentioned in para-11 of impugned judgment. 2. Learned counsel for appellants, after referring to para-9, 10 and 11 of impugned judgment, submits that First Appellate Court has wrongly set aside judgment and decree passed by trial Court and has wrongly remanded back case to trial Court for recording of evidence etc. It is also urged that in 1998, original plaintiff Balkishan expired. At the time of death of Balkishan, evidence of plaintiff was over and case was fixed for defendant evidence. After death of Balkishan, plaintiff Shivkant was brought on record on the basis of Will executed by Balkishan and plaintiff Bhagwandas was brought on record on the ground that he is adopted son of Balkishan. It is also urged that after Shivkant and Bhagwandas were added as plaintiffs, they never filed any application for affording an opportunity for adducing evidence. On above grounds, it is urged that First Appellate Court has wrongly set aside trial Court’s judgment and decree and remitted case back to trial Court for recording of evidence etc. Hence, appeal be allowed and impugned judgment and decree be set aside. 3. I have heard learned counsel for the appellants and perused the record of the case. PRINCIPLES/GOVERNING REMAND OF CASE:- 4. Before analyzing and discussing the facts of the case, it would be appropriate to refer relevant provisions of law and pronouncements having bearing on issue involved in the case. 5. A co-ordinate Bench of this Court in Vipin Kumar and Others v. Sarojani reported in (2013) 1 MP LJ 480 has issued certain guidelines with respect to remand of case by First Appellate Court in para-17 which are as under:- “17. It is made clear here that for future while directing remand by the lower Appellate Court certain guidelines are required to be observed while passing judgment and order directing remand. It is directed that the lower Appellate Courts in the State shall observed the contingencies in which remand is permissible otherwise the appeals be decided on merit. It is made clear here that for future while directing remand by the lower Appellate Court certain guidelines are required to be observed while passing judgment and order directing remand. It is directed that the lower Appellate Courts in the State shall observed the contingencies in which remand is permissible otherwise the appeals be decided on merit. The contingencies wherein remand can be directed is observed as thus: (1) If the suit has been decided on a preliminary issue and the decree is reversed by Appellate Court then while passing the order of remand the Appellate Court may direct to try the issue or issues after taking the evidence already on record or after the remand, if any, on restoring the suit to its original number. (2)If an appeal is preferred against the judgment and decree passed by the trial Court other then the preliminary issue and Appellate Court reversed such finding in appeal and further found that re-trial is necessary then by recording such finding the power as specified in clause (1) may be exercised by the Court directing wholesale remand. (3) If the Appellate Court found from the decree against which an appeal is preferred the trial Court has omitted to frame or try any issue or to determine the question of fact which appears essential to right decision of the suit on merit, then the Appellate Court may frame issues and refer the same for trial to the Court from whose decree the appeal is preferred directing to take additional evidence if required. The Appellate Court shall further direct that after trying the said issue the evidence be returned to it with a finding and reasons therefor. In such contingencies the time to return back the evidence and the finding ought to be fixed by the appellate Court. Thereafter the Appellate Court after inviting objections may determine the appeal on merit. (4) On production of the additional evidence and after taking them on record, if the Appellate Court is satisfied to take some witness to prove the document then the remand may be directed for taking such evidence or witness on record specifying the points for it. On taking additional evidence on record by all the times the remand is not necessary if the document is admissible in evidence and not objected by other side, the Court may pass the order on merit deciding the appeal. On taking additional evidence on record by all the times the remand is not necessary if the document is admissible in evidence and not objected by other side, the Court may pass the order on merit deciding the appeal. (5) It is to be made clear here that if the evidence on record is sufficient to enable the Court to pronounce the judgment after re-setting the issue, the Appellate Court should not remand in routine and the appeals must be decided on merit. (6) If the Appellate Court is of the opinion to direct for remand in any of the contingencies as specified hereinabove under clause (1) to (4), it is the duty of the Court to fix the date of appearance of the parties before the trial Court with a view to curtail the delay on directing such remand and if the remand in the above clause (3) findings be also called within the time specified.” 6. Hon’ble apex Court in Arvind Kumar Jaiswal (D) Thr. L.R. v. Devendra Prasad Jaiswal Varun reported in 2023 LiveLaw (SC) 112 has held as under:- “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 issue(s) 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.” 7. Further, Hon’ble apex Court in Sirajudheen v. Zenath & Ors., reported in 2023 LiveLaw (SC) 145, has observed and held as under:- “ 9.2. Further, Hon’ble apex Court in Sirajudheen v. Zenath & Ors., reported in 2023 LiveLaw (SC) 145, has observed and held as under:- “ 9.2. While explaining the scope of rules 23 and 23-A of Order XLI CPC, in the case of Municipal Corporation, Hyderabad (supra), this Court has observed as under: - “32. A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order 41 rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order 41 rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence. 33. Order 41 rule 23-A of the Code of Civil Procedure is also not attracted. The High Court had not arrived at a finding that a retrial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order 41 rule 23 of the Code. 34. An order of remand cannot be passed on ipse dixit of the Court…... 9.3. In the case of Sanjay Kumar Singh (supra) relied upon by the learned counsel for the respondent No. 1, this Court has observed as under: - “7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature. 8. As observed and held by this Court in A. Andisamy Chettiar v. A. Subburaj Chettiar [(2015) 17 SCC 713], the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.” 8. A Three Judge Bench of Hon’ble apex Court in Shivkumar and Others v. Sharanabasappa and Others (2021) 11 SCC 277 has held as under- “26.1. The procedure relating to appeals from original decrees (usually referred to as “regular first appeal”) is provided in Order 41 of the Code of Civil Procedure, 1908 and therein, various provisions relating to hearing of an appeal, remand of case, remitting of issues for trial, production of additional evidence in appellate court, etc. are contained in rules 16 to 29 under the sub-heading “Procedure on hearing”. For their relevance, we may take note of the provisions contained in rules 23, 23-A, 24 and 25 of Order 41 CPC as follows: “23. are contained in rules 16 to 29 under the sub-heading “Procedure on hearing”. For their relevance, we may take note of the provisions contained in rules 23, 23-A, 24 and 25 of Order 41 CPC as follows: “23. 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, with directions to readmit 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 to all just exceptions, be evidence during the trial after remand. 23-A. Remand in other cases— Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the appellate court shall have the same powers as it has under rule 23. 24. Where evidence on record sufficient, appellate court may determine case finally —Where the evidence upon the record is sufficient to enable the appellate court to pronounce judgment, the appellate court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate court proceeds. 25. 25. Where appellate court may frame issues and refer them for trial to Court whose decree appealed from—Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate court essential to the right decision of the suit upon the merits, the appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the appellate court together with its findings thereon and the reasons therefor within such time as may be fixed by the appellate Court or extended by it from time to time.” 26.2. Rule 23-A came to be inserted in Order 41 CPC by way of the Code of Civil Procedure (Amendment) Act, 1976. Prior to this amendment, it was generally accepted by the Courts that although under rule 23, an order of remand could be made only on reversal of a decree disposing of suit on a preliminary point but, the appellate court has the inherent power of remanding a case where it was considered necessary to do so in the interest of justice. Some of the High Courts had made similar provisions by way of their respective amendments. Insertion of Rule 23-A in Order 41 by the amending Act of 1976 makes it explicit that even when the suit has been disposed of otherwise than on a preliminary point and the decree is reversed in appeal, the appellate court shall have the power of remand, if a retrial is considered necessary. [Such powers of remand, as provided in rules 23 and 23-A of Order 41, are different than the power of the appellate court to remit an issue for findings under rule 25. The power of remitting is ordinarily to be resorted to when the trial Court has omitted to try any material issue or to determine any question of fact. [Such powers of remand, as provided in rules 23 and 23-A of Order 41, are different than the power of the appellate court to remit an issue for findings under rule 25. The power of remitting is ordinarily to be resorted to when the trial Court has omitted to try any material issue or to determine any question of fact. In other words, the proper procedure in a case where the trial court, while disposing of the suit on merits, had failed to determine one or more of the material issues/questions, is to remit the issue/question(s) under rule 25 and not to remand the whole case for retrial. Ordinarily, in the case of an order under rule 25 of Order 41, the matter is retained on the file of the appellate Court and only the issue/question(s) are remitted to the trial Court for findings. On the other hand, when an order of remand is made under rule 23 or rule 23-A, the whole case goes back for decision to the trial court except on the point on which the appellate court has returned concluded finding, if any. While making a remand under rule 23 or rule 23-A, the judgment and decree of the trial court is required to be set aside but it is not necessary to set aside the impugned judgment and decree when taking recourse to rule 25 of Order 41. 26.3. A comprehension of the scheme of the provisions for remand as contained in rules 23 and 23-A of Order 41 is not complete without reference to the provision contained in rule 24 of Order 41 that enables the appellate Court to dispose of a case finally without a remand if the evidence on record is sufficient; notwithstanding that the appellate court proceeds on a ground entirely different from that on which the trial court had proceeded. 26.4. A conjoint reading of rules 23, 23-A and 24 of Order 41 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 41 CPC 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. 26.4.1. The decision cited by the learned counsel for the appellants in Mohan Kumar v. State of M.P., (2017) 4 SCC 92 is an apt illustration as to when the appellate Court ought to exercise the power of remand. In the said case, the appellant and his mother had filed the civil suit against the Government and local body seeking declaration of title, perpetual injunction and for recovery of possession in respect of the land in question. The trial court partly decreed the suit while holding that the plaintiffs were the owners of the land in dispute on which trespass was committed by the respondents and they were entitled to get the encroachment removed; and it was also held that the Government should acquire the land and pay the market value of the land to the appellant. Such part of the decree of the trial court was not challenged by the defendants but as against the part of the decision of the trial Court which resulted in rejection of the claim of the appellant for allotment of an alternative land, the appellant preferred an appeal before the High Court. Such part of the decree of the trial court was not challenged by the defendants but as against the part of the decision of the trial Court which resulted in rejection of the claim of the appellant for allotment of an alternative land, the appellant preferred an appeal before the High Court. The High Court not only dismissed [Mohan Kumar v. State of M.P., FA No. 3 of 1998, order dated 24.1.2005 (MP)] the appeal so filed by the appellant but proceeded to dismiss the entire suit with the finding that the appellant-plaintiff had failed to prove his ownership over the suit land inasmuch as he did not examine the vendor of his sale deed. In the given circumstances, this Court observed that when the High Court held that the appellant was not able to prove his title to the suit land due to nonexamination of his vendor, the proper course for the High Court was to remand the case to the trial court by affording an opportunity to the appellant to prove his title by adducing proper evidence in addition to what had already been adduced. Obviously, this Court found that for the conclusion reached by the High Court, a case for retrial was made out particularly when the trial court had otherwise held that the appellant was owner of the land in dispute and was entitled to get the encroachment removed as also to get the market value of the land. Such cases where retrial is considered necessary because of any particular reason and more particularly for the reason that adequate opportunity of leading sufficient evidence to a party is requisite, stand at entirely different footings than the cases where evidence has already been adduced and decision is to be rendered on appreciation of evidence. It also remains trite that an order of remand is not to be passed merely for the purpose of allowing a party to fill- up the lacuna in its case. 26.5. It gets perforce reiterated that the occasion for remand would arise only when the factual findings of the trial Court are reversed and a retrial is considered necessary by the appellate Court. 26.6. 26.5. It gets perforce reiterated that the occasion for remand would arise only when the factual findings of the trial Court are reversed and a retrial is considered necessary by the appellate Court. 26.6. The present case had clearly been the one where the parties had adduced all their evidence, whatever they wished to; and it had not been the case of the appellant-plaintiffs that they were denied any opportunity to produce any particular evidence or if the trial was vitiated because of any alike reason. As noticed, there had been several suspicious circumstances surrounding the will in question, some of which were noticed by the trial Court but were brushed aside by it on untenable reasons. The High Court has meticulously examined the same evidence and the same circumstances and has come to a different conclusion that appears to be sound and plausible, and does not appear suffering from any infirmity. There was no reason or occasion for the High Court to consider remanding the case to the trial Court. The contention in this regard is required to be, and is, rejected.” ANALYSIS AND FINDINGS:- 9. Now facts of the case would be examined and assessed in the light of principles/parameters laid down in above pronouncements for determining the justifiability/legality of remand of instant case by First Appellate Court. 10. The contention in this regard is required to be, and is, rejected.” ANALYSIS AND FINDINGS:- 9. Now facts of the case would be examined and assessed in the light of principles/parameters laid down in above pronouncements for determining the justifiability/legality of remand of instant case by First Appellate Court. 10. For aforesaid purpose, it would be appropriate to reproduce para-7 to 11 of impugned judgment wherein, finding/conclusions, containing grounds for remand of case, are mentioned, which are as under: ^^¼7½ v/khuLFk U;k;ky; ds vfHkys[k ds voyksdu ls ;g Li"V gS fd okLro esa ewy oknh ckyfd'ku ds }kjk ;g nkok prqFkZ vij ftyk U;k;kèkh'k Hkksiky ds U;k;ky; esa çLrqr fd;k x;k Fkk tks çdj.k Øekad 2,@80 ds :i esa fopkfjr fd;k x;k vkSj bl çdj.k esa ewy oknh ckyfd'ku vkSj mlds lk{kh ukFkwjke rFkk ewypan dh lk{; Hkh vafdr dh xbZ Fkh ijarq ckn esa prqFkZ vij ftyk U;k;k/kh'k ds }kjk ikfjr vkns'kkuqlkj ;g nkok muds U;k;ky; ds {ks=kf/kdkj dk ugha ik;s tkus ds vk/kkj ij ;g çdj.k vkŒ 7 fuŒ 10 lhihlh ds çko/kkuksa ds rgr l{ke U;k;ky; vFkkZr~ O;ogkj U;k;k/kh'k oxZ&2 ds U;k;ky; esa çLrqr fd;s tkus ds vkns'k fn;s x;s Fks ftlds vk/kkj ij ;g çdj.k fnukad 4-4-1986 dks f}rh; O;ogkj U;k;k/kh'k oxZ&2 ds U;k;ky; esa lafLFkr fd;k x;k Fkk vkSj v/khuLFk U;k;ky; ds vfHkys[k ds voyksdu ls ;g Li"V gS fd fnukad 30-11-1998 dks U;k;ky; }kjk ikfjr vkns'kkuqlkj oknh Øekad&2 dh vksj ls çLrqr vkosnu i= varxZr /kkjk 33 lk{; vf/kfu;e dk Lohdkj fd;k tkdj prqFkZ vij ftyk U;k;k/kh'k ds U;k;ky; esa vafdr fd;s x;s ewy oknh ckyfd'ku vkSj mlds nksuksa lkf{k;ksa dh lk{; dks bl çdj.k esa iढ+s tkus dh vuqefr nh tkdj bu rhuksa lkf{k;ksa ds dFku¨a dh lR;çekf.kr çfrfyfi bl çdj.k ds vfHkys[k esa layXu gksuk crkdj mUgsa çekf.kr djkus ds fy;s lacaf/kr ewy vfHkys[k dks ryc djk;s tkus ds vkns'k fn;s x;s Fks vkSj çdj.k oknh lk{; gsrq fu;r fd;k x;k FkkA ¼08½ bl rjg v/khuLFk U;k;ky; }kjk ikfjr bl vkns'k fnukad 30-11-1998 ds }kjk ewy oknh ckyfd'ku vkSj mlds lkFkh ukFkwjke rFkk ewypan dh lk{; dh lR;çekf.kr çfrfyfi;ksa dks bl vfHkys[k esa lk{; ds :i esa çLrqr djus ds fy;s ewy vfHkys[k ryc djkus ds vkns'k fn;s x;s Fks ijarq bl vkns'k ds vuqlj.k esa orZeku oknh Øekad 2 f'kodkar ds }kjk u rks ewy vfHkys[k dks ryc fd;k x;k gS vkSj u gh Lo;a ds }kjk çLrqr vius eq[; ijh{k.k ds 'kiFki= esa bu nLrkostksa dks çekf.kr fd;k x;k gS bl rjg v/khuLFk U;k;ky; ds bl vkns'k ds vuqlj.k esa bu rhuksa lkf{k;ksa ds iwoZ çdj.k esa ntZ lk{; dh lR;çekf.kr çfrfyfi dks u rks çekf.kr djk;k x;k gS] u gh mu ij çn'kZ vafdr djk;s x;s gSa ftuds vHkko esa ;s rhuksa lR;çekf.kr çfrfyfi okLrfod :i ls lk{; ds :i esa bl çdj.k esa xzkg~; gh ugha gqbZ gSaA ¼09½ blh çdkj vfHkys[k ds voyksdu ls ;g Hkh nf'kZr gksrk gS fd bl çdj.k esa vihykFkhZ@oknh Øekad 2 f'kodkar pkScs ds }kjk vius eq[; ijh{k.k esa fdlh Hkh nLrkost dks u rks çekf.kr fd;k x;k gS] u gh çnf'kZr djk;k x;k gS vkSj blds foifjr ewy oknh ckyfd'ku ds }kjk prqFkZ vij ftyk U;k;k/kh'k Hkksiky U;k;ky; esa ntZ djkbZ xbZ Lo;a dh lk{; esa tks nLrkost çn'kZ ih&1 yxk;r çn'kZ ih&25 ds lk{; ds :i esa is'k fd;s x;s Fks mu lHkh nLrkostksa dks lk{; esa oknh dh vksj ls çLrqr gksuk ekudj mlh ds vk/kkj ij çdj.k dk fujkdj.k fd;k x;k gS tks vR;f/kd =qfViw.kZ gS D;ksafd tc okLro esa ewy oknh ckyfd'ku }kjk çLrqr lk{; bl çdj.k esa mijksDrkuqlkj lR;çekf.kr çfrfyfi dks fofèkor :i ls çekf.kr ugha djk;s tkus ds dkj.k lk{; ds :i esa xzke gh ugha gqbZ Fkh rFk ,slh fLFkfr esa ewy oknh ckyfd'ku }kjk viuh lk{; esa çLrqr fd;s x;s to'kaxh yxk;r 25 ds nLrkostksa dks lk{; esa fdl vk/kkj ij xzkg~; fd;k x;k bldk dksbZ dkj.k v/khuLFk U;k;ky; ds }kjk vius ç'uxr fu.kZ; esa nf'kZr ugha fd;k x;k bl rjg bu vk/kkjksa ij ;g Li"V :i ls nf'kZr gksrk gS fd okLro esa v/khuLFk U;k;ky; ds }kjk oknh@vihykFkhZ ds çn'kZ ih&1 yxk;r 25 ds ftu nLrkostksa dks lk{; esa çLrqr fd;k ekuk tkdj ç'uxr fu.kZ; ikfjr fd;k x;k gS okLro esa ,slk dksbZ nLrkost fof/kd :i ls bl çdj.k esa lk{; ds :i esa xzkg~; gh ugha fd;s tk ldrs gSaA bl rjg v/khuLFk U;k;ky; ds }kjk bl egRoiw.kZ rduhdh i{k ij dksbZ fopkj u djds vkSj ek= lrgh rkSj ij] fof/kd çko/kkuksa dk voyksdu fd;s fcuk] bu çn'kZ ih&1 yxk;r 25 ds nLrkostksa dks mfpÙk :i ls çLrqr fd;k ekuk tkdj vkSj mUgsa lk{; ds :i esa xzkg~; djds xaHkhj =qfV dkfjr dh xbZ gS vr% v/khuLFk U;k;ky; }kjk çLrqr ç'uxr fu.kZ; ek= blh vk/kkj ij fLFkj j[ks tkus ;ksX; çekf.kr ugha gksrkA ¼10½ vfHkys[k ds voyksdu ls ;g egRoiw.kZ rF; nf'kZr gksrk gS fd mHk;i{k ds e/; fookfnr Hkwfe ds laca/k esa ;g fookn o"kZ 1980 ls yafèkr gS vr% ,slh fLFkfr esa tcfd ek= v/khuLFk U;k;ky; }kjk dh xbZ mijksDr =qfV ds vk/kkj ij mlds }kjk ikfjr fd;k x;k ç'uxr fu.kZ; fnukad 24-12-2005 vikLr fd;k tkdj ;g vihy fujk—r dh tkrh gS rks mlls mHk;i{k ds e/; brus yacs le; ls yafcr fookn dk xq.k&n¨"k ds vk/kkj ij fujkdj.k ugha gks ik;sxkA ¼11½ vr% çdj.k dh bu leLr ifjfLFkfr;ksa dks ns[krs gq;s ;g vihy xq.k&nks"k ds vk/kkj ij fujk—r ugha dh tkrh gS vkSj v/khuLFk U;k;ky; ds }kjk mijksDrkuqlkj dh xbZ çfØ;k laca/kh xaHkhj =qfV dks ns[krs gq;s vèkhuLFk U;k;ky; }kjk ikfjr ç'uxr fu.kZ; ,oa fMØh fnukad 24-12-2005 vikLr fd;k tkrk gS vkSj ;g çdj.k v/khuLFk U;k;ky; dks bl funsZ'k ds lkFk çfrçsf"kr fd;k tkrk gS fd og çdj.k esa mijksDrkuqlkj ikfjr vkns'k fnukad 30-11-1998 ds vuqlj.k esa ewy oknh ckyfd'ku ,oa vU; lk{kh ukFkwjke o ewypan ds lk{; ds dFkuksa dks bl çdj.k esa xzkg~; fd;s tkus gsrq fof/kd çfØ;k viukdj lacaf/kr ewy vfHkys[k ryc djkdj mUgsa fof/kor :i ls oknh lkf{k;ksa ls çnf'kZr djds lk{; us xzkg~; djus ds laca/k esa fof/kd dk;Zokgh djsaxs vkSj bl fof/kd çfØ;k ds vuq:i oknh dh vksj ls çn'kZ vafdr djk;s x;s vkSj lk{; esa xzkg~; fd;s x;s nLrkostksa ds vk/kkj ij çdj.k esa xq.k&nks"k ds vk/kkj ij iqu% fu.kZ; ikfjr djsaxsA** 11. Thus, from above, grounds, on which case was remanded back to trial Court, may be summarized as under:- (i) Original civil suit bearing No.2-A/80 was originally filed in the Court of 4th ADJ by original plaintiff Balkishan and in above case, evidence of Balkishan and his witnesses Moolchand and Nathuram was recorded before Court of IVth ADJ; (ii) Later on, IVth ADJ, sent above civil suit to the Court of Civil Judge, Class-II under Order 7 rule 10 CPC; (iii) After death of original plaintiff Balkishan, Bhagwandas was brought on record as plaintiff No.1 and Shivkant Choubey was brought on record as plaintiff No.2; (iv) On 30.11.1998, trial Court allowed application under section 33 of Indian Evidence Act filed by plaintiff No.2 Shivkant Choubey and Court permitted to take into consideration/read deposition of original plaintiff and other two witnesses, whose depositions were recorded before ADJ Court, and also allowed plaintiff No.2 to requisition original record of ADJ Court for exhibiting certified copies of depositions of above witnesses and case was fixed for plaintiff evidence; (v) But in furtherance and compliance of above order, plaintiff No.2 neither requisitioned original record of ADJ Court nor got exhibited above depositions in his affidavit/proved in his examination-inchief. Hence, certified copies of depositions of above three witnesses were not admissible in evidence; (vi) Plaintiff No.2 did not get exhibited/proved any document in his examination-in-chief. On the contrary, trial Court disposed of the case treating documents (Ex.P/1 to P/25) as having been filed on behalf of plaintiff. Thus, trial Court disposed of the suit on the basis of documents (Ex.P/1 to P/25), whereas, they were not legally admissible in evidence because certified copies were not proved in accordance with law; (vii) First Appellate Court remitted back case to trial Court to decide the case afresh after requisitioning original record as per order dated 30.11.1998 and after getting them exhibited/proved by plaintiff witnesses; 12. For deciding the legality/justifiability of findings/conclusions recorded by First appellate Court and reasons assigned for remitting back the case to trial Court, as mentioned in para-7 to 11 of impugned judgment, following facts are required to be kept in mind:- (i) As per order dated 30.11.1998, trial Court allowed plaintiff No.2 ‘s application under Section 33 of Indian Evidence Act and requisitioned original record of IVth ADJ Court and fixed the case for plaintiff evidence; (ii) On 16.4.2003, plaintiff No.1 Bhagwandas closed his evidence and on 16.4.2003, case was fixed for plaintiff No.2 Shivkant Choubey’s evidence; (iii) On 18.7.2005, plaintiff No.2 Shivkant Choubey closed his evidence and on 29.11.2005, defendant closed his evidence. (iv) First Appeal was filed by plaintiff No.2 Shivkant Choubey. (v) Perusal of trial Court record as well as First Appellate Court reveals that therein plaintiff No.2 Shivkant Choubey did not file any application to the effect that he be afforded an opportunity to lead evidence/to requisition record or that his evidence has been wrongly closed and he be pro-vided another opportunity to lead oral/documentary evidence or for requisitioning the record, in compliance of order dated 30.11.1998. FINAL CONCLUSIONS:- 13. Thus, if findings recorded by First Appellate Court and reasons/grounds assigned for remanding the case back to trial Court are examined/assessed in the backdrop of/factual scenario of the case, as mentioned in immediately preceding paras and also keeping in mind/along with relevant statutory provisions and principles/parameters governing remand of case, as mentioned in preceding paras, then, certainly, in this Court’s opinion, First Appellate Court has erred, both factually as well as legally, in remanding the case. No ground was made out for remand of the case. Thus, learned First Appellate Court has committed material illegality in remanding the case and findings recorded by the First Appellate Court are perverse and contrary to law and facts. 14. Hence, appeal filed by appellant is allowed and impugned judgment and decree passed by First Appellate Court is set aside and learned First Appellate Court is directed to decide appeal afresh on merits on the basis of evidence available on record, after hearing both the parties. 15. Parties are directed to remain present before First Appellate Court on 30.9.2024. 16. Appeal filed by appellant is allowed and disposed of accordingly.