ORDER : Hirdesh, J. This misc. appeal under Order 43 Rule 1(u) of CPC has been filed by appellant- defendant No.2 assailing the impugned judgment and decree dated 24-07-2019 passed by Second Additional District Judge, Karera, District Shivpuri in Regular Civil Appeal No.22-A of 2016, whereby the appeal filed by respondents no.1 and 2/plaintiffs has been allowed and while allowing the application of plaintiffs under Order 41 Rule 27 of CPC, the judgment and decree dated 06-02-2016 passed by Additional Civil Judge, Class-I, Karera, District Shivpuri in Civil Suit No. 55-A of 2013 has been set aside and the matter has been remanded to the trial Court for fresh adjudication. (2) Necessary facts for disposal of present appeal, in short, are that a civil suit was filed by plaintiffs seeking declaration and injunction. It was pleaded that they are owners and are in possession of 1/2 share of land bearing survey no. 1103, 1104, 1106, 1117, 1672, admeasuring are 2. 53 hectares and land bearing survey nos. 966, 971, 976, 1002, 1003, 1005, 1006 and 1007 admeasuring area 29.39 hectares situated in Village Jujhai, Tehsil Karera, District Shivpuri. Plaintiffs further sought declaration that the sale deed dated 14.05.2009 executed in favour of defendant No.2/appellant to be void. It was pleaded that plaintiffs and defendant No.1 are members of joint family and Manger of Family was Rajaram (father of defendant No.1) and grandfather of plaintiff No.1 and father-in-law of plaintiff no.2. During his lifetime, Rajaram divided property in between his both sons Damodar Prasad and Vasudev Prasad. Rajaram died on 07-12-1982 and his wife Khesar died in 1995. Heirs of Rajaram got muted the land in dispute in their favour. Father of plaintiff no.1 raised an objection and filed an appeal before the SDO, Karera whereby matter was remanded to Tahsildar. Thereafter, defendant No.1 given his consent for mutation of name of father of plaintiff No.1 on 1/4th share and father of plaintiff No.1 fell in ill and died on 21-10- 2009. The Tahsildar again passed an order of mutation in favour of defendant No.1 and defendant No.1 sold the property in question 1/4th share to defendant no.2. (3) Defendants filed written statement and denied plaint averments and pleaded that plaintiffs and defendants were not members of joint family. The Tahsildar again passed an order of mutation in favour of defendant No.1 and defendant No.1 sold the property in question 1/4th share to defendant no.2. (3) Defendants filed written statement and denied plaint averments and pleaded that plaintiffs and defendants were not members of joint family. Defendant no.1 earned disputed property from his self-earning and denied the oral partition and about the consent for mutation in the name of Damodar. It was further pleaded that Tahsildar has rightly passed order of mutation and father of plaintiff No.1 did not object the proceedings of Tahsildar nor file any appeal or revision. He has sold the property in dispute to defendant No.2 in order to meet household-expenses. It was further pleaded that the partition dated 05-01-1975 is an unregistered document and on the basis of such partition, no right is accrued in favour of plaintiffs and such partition is not admissible in evidence. He has sold the property in question to defendant No.2 for consideration of Rs.1,43,500/-. (4) On the basis of pleadings of parties, trial Court framed issues and after recording the evidence of parties, dismissed the suit filed by the plaintiffs vide judgment and decree dated 06-02-2016 holding that plaintiffs failed to prove that the disputed land was of father of plaintiff no.1 and husband of plaintiff no.2 Damodar Prasad and the so-called partition is not a registered document, therefore, the same cannot be admissible in evidence and the so-called consent given before the Tahsildar cannot be a source of title and it does not make any difference about the title of plaintiffs and defendant no.2 is in possession since the date of execution of sale deed. (5) Being dissatisfied, plaintiffs filed a civil appeal before the First Appellate Court and the first appellate Court by setting aside the impugned judgment and decree passed by the trial Court, allowed the application of plaintiffs under Order 41 Rule 27 of CPC and remanded the matter to the Trial Court for fresh decision. Hence, this misc. appeal. (6) It is contended on behalf of appellant that the first appellate Court has committed an error in allowing the application under Order 41 Rule 27 of CPC. The case in hand does not warrant any retrial and an opportunity should be given to the plaintiffs in order to fill up the lacuna. Hence, this misc. appeal. (6) It is contended on behalf of appellant that the first appellate Court has committed an error in allowing the application under Order 41 Rule 27 of CPC. The case in hand does not warrant any retrial and an opportunity should be given to the plaintiffs in order to fill up the lacuna. In absence of requirements mentioned in Order 41 Rule 27 of CPC, the first appellate Court has committed an error in allowing such application. Written Statement was filed on 29th of July, 2013 and evidence of plaintiffs was well within the knowledge of plaintiffs but they did not choose to take such so- called document on record in trial. Placing reliance on the decision of Hon'ble Apex Court in the case of Shivakumar and Others vs. Sharanabasappa and Others, reported in 2021(11) SCC 277 , it is submitted that order of remand should not be passed in routine manner because unwarranted order of remand merely elongates life of litigation without serving cause of justice. The First Appellant ought to have decided the appeal on its own merit rather to remand the matter by setting aside the judgment and decree passed by trial Court. (7) Heard learned Counsel for the appellant. (8) For ready reference and convenience, Rule 27 of Order 41 of the CPC is reproduced below : 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, or [(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, or] (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. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. (8) In this case, the provisions of Order 41 Rules 23, 23-A and 25 of CPC are also pertinent. Rules 23, 23-A and 25 of Order 41 CPC are reproduced as under: 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, 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. [23A. 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 re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.] 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]. (9) The Hon'ble Apex Court in case of Basayya I. Mathad Vs. (9) The Hon'ble Apex Court in case of Basayya I. Mathad Vs. Rudrayya S. Mathad and Others, (2008) 3 SCC 120 , has held that parties to the lis are not entitled to produce additional evidence as a matter of course or routine. For the said purpose, they must satisfy the conditions stated in Order 41 Rule 27 of CPC. Para 12 of the judgment is relevant which is as under : 12. It is clear that parties to the lis are not entitled to produce additional evidence as of course or routine but must satisfy the conditions stated in sub-clauses (a) and (aa). Admittedly, such recourse has not been resorted to either by the party concerned or were those principles adhered to by the High Court. Para 3 of his order shows that the learned Judge verified the document produced on his direction without complying with the mandate as provided under Rule 27 of Order 41. Hence, we are of the view that the finding of the learned Judge based on a document produced at the time of argument dehors Rule 27 referred above cannot be sustained in the eye of the law. In such circumstances, his ultimate conclusion treating the suit property as a family property partible among the members of the family is also liable to be set aside. In fact, sub-clause (2) of Rule 27 mandates that wherever additional evidence is allowed to be produced by an appellate court, it shall record the reason for its admission. It is needless to mention that the High Court neither followed those conditions for production of additional evidence nor recorded the reason for basing reliance on the same. (10) In the case of Sunder Lal and Son vs. Bharat Handicrafts Private Ltd., AIR 1968 SC 406 , it has been held by the Hon'ble Apex Court that if document is in the possession of party and no explanation is given for not producing it in the original Court, the plea that the party did not realize the importance of document in trial Court would not bring case within the expression “other substantial cause” in Order 41 Rule 27 CPC. (11) In case of Pramod Kumar Jain & Ors. Vs. Smt. Kushum Lashkari & Ors. (11) In case of Pramod Kumar Jain & Ors. Vs. Smt. Kushum Lashkari & Ors. I.L.R. [2020] M.P. 163, the Coordinate Bench of this Court has held that provision of Order 41 Rule 27 CPC does not authorize any lacuna or gaps in evidence to be filled up at the stage of appeal. It is the duty of the litigant party to show due diligence. (12) In case of Sudesh Kohli (Smt.) Vs. Smt. Chandarani Mishra & Anr., I.L.R. [2019] M.P. 1441, the Coordinate Bench of this Court has held that the trial Court, very elaborately/categorically appreciated each and every evidence, oral/documentary and left no issues unanswered or undecided. Appellate Court has not given any specific reason as to why findings of trial Court is not proper. Appellate Court, instead of remand, could have decided the same on merits and thus has not exercised its discretion as conferred under Order 41 Rule 23-A CPC. It has further held that power of remand cannot be exercised to fill up lacuna of one or other party and can only be exercised for curing a radical defect in trial or hearing in appeal resulting in miscarriage of justice. (13) In the case of Asharfi Devi (Smt.) vs. Hari Prasad & Ors., 2011 (4) I.L.R. Short Note 121, it has been held that where there is no evidence that will is a forged document, then at the stage of appeal, prayer for getting the signatures examined by handwriting expert cannot be allowed. (14) In case of J. Balaji Singh v. Diwakar Cole, AIR 2017 SC 2402 , Hon'ble Apex Court in Para 16 & 17 has held as infra : 16. 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. 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. 17. 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. 17. 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. (15) In case of Jagnnath & Anr. Vs. Karuna @ Chetna and other, 2018(3) M.P.L.J. 98 , the Coordinate Bench of this Court has held that Appellate Court is required to first address on justifiability of reversing findings of trial Court. Before exercising jurisdiction under Order 41, Rules 23 and 23-A, Appellate Court should ascertain requirement for remand. (16) In the case of Vipin Kumar and others vs. Sarojani, 2013 (1) M.P.L.J. 480 , the Coordinate Bench of this Court has elaborately discussed the provisions of Order 41 Rules 23 to 27 CPC and has held in paragraph No. 17 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 observe 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 than 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. (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-settling 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 for 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. Order accordingly'' (17) As held in the case of J. Balaji Singh (supra), when additional evidence is produced and taken on record, and the appellate court finds it appropriate to remand the case due to the additional evidence having an impact on the entire matter, it becomes incumbent upon the trial court to decide the case afresh. In such circumstances, the First Appellate Court should not go on to record the findings on merits. It is not necessary to do so while passing the order of remand, because once the First Appellate Court formed an opinion to remand the case, it is required to give reasons in support of the remand order as to why the remand is called for in the case. Indeed, the remand is made to enable the trial court to decide the case on merits. Therefore, there is no need to discuss much less record findings on several issues on merits. (18) Having considered the law laid down in the aforesaid cited cases as well as provisions of Order 41 Rule 23, 23-A, 25 and 27 of CPC, it is found that the impugned judgment and decree is not sustainable, as the admission of the application under Order 41 Rule 27 of CPC has been allowed dehors the provisions in this regard. Further, the written statement/reply is not a public document as has been held by this Court (Principal Seat) in the case of Smt. Khursheed Bano vs. Smt. Rukhsana Bano and Others, decided on 22nd of November, 2023 in First Appeal No. 323 of 2016. It is also found from paragraph 27 of the impugned judgment and decree that the First Appellate Court held that the trial Court has not properly marshalised the evidence of both the parties. It is not a ground for remand. It is the duty of the First Appellate Court to go through the evidence adduced by both the parties on the basis of fact and law. Application under Order 41 Rule 27 of CPC, the plaintiff have not given any substantial reason as to why they are unable to produce the document before the trial Court which was in their possession. Application under Order 41 Rule 27 of CPC, the plaintiff have not given any substantial reason as to why they are unable to produce the document before the trial Court which was in their possession. Considering para 20 of impugned judgment and decree passed by the First Appellate Court, it is found that the the First Appellate Court remanded the matter assuming that the document is material for the just decision of the case and allowed the application. However, in the considered opinion of this Court, there is no sufficient ground to allow the application filed by plaintiffs under Order 41 Rule 27 of CPC. The First appellate Court, dehors the said provisions, therefore, the admission of the application and remand of matter to the trial Court are not sustainable. (19) In view of above, the impugned judgment and decree dated 24-07-2019 passed by the First Appellate Court is set aside and the matter is remanded back to the First Appellate Court for deciding the regular civil appeal on its own merit. The regular civil appeal is restored for reconsideration by the First Appellate Court in accordance with law. Parties are directed directed to appear before the First Appellate Court on 04th September, 2025. (20) With the aforesaid, the instant misc. appeal stands disposed of.