JUDGMENT : Yarenjungla Longkumer, J. Heard Mr. C. Lalfakzuala, learned counsel for the applicant and Mr. Benjamin Lalthlamuana, learned Government Advocate for the State respondent. 1. This is a second appeal filed under Section 100 of the Code of Civil Procedure (CPC for short), 1908, against the Impugned Judgment and Order dated 07.09.2023 passed by the Additional District Judge-1, Aizawl in RFA 11 of 2011, arising out of Civil Suit No. 111 of 2011. The appellant is aggrieved by the Impugned Judgment and Order dated 07.09.2023 in as much as the First Appellate Court instead of deciding the case on merit remanded the case for a de-novo trial from the stage of settlement of issues in relation to the counter-claim made by the defendants 1 and 2/respondent No. 1 and 2. 2. The appellant has challenged the Impugned Judgment and Order dated 07.09.2023, on the ground that the First Appellate Court has failed to satisfy itself as to whether remand of the case is attracted under the facts and circumstances of the case either under Order XLI, Rule 23 CPC or Order XLI, Rule 23-A CPC. 3. The contention of the appellant herein, is that the First Appellate Court was erroneously of the view that the counter-claim preferred by the defendant Nos. 1 and 2/respondent No. 1 and 2 was not considered by the court of learned Civil Judge Senior-IV, Aizawl. Hence, it is prayed that the Judgment Order dated 07.09.2023 passed by the learned First Appellate Court/Ld. Additional District Judge-1, Aizawl in RFA No. 11 of 2021 may be set aside and quashed. And further, prays that the learned First Appellate Court may be directed to consider the RFA 11 of 2011 on merit. 4. Steps for notice of service upon respondent No. 1 and 2 were taken by the appellant, however, the service report/AD cards were returned unserved. Accordingly, this Court directed the appellant to take steps through dasti service. Thereafter, by an order dated 23.01.2025, this Court has stated that the notice upon respondent Nos. 1 and 2 are declared to be complete. Since the respondent Nos. 1 and 2 remained unrepresented, this Court found it fit to proceed with the matter in the absence of respondent Nos. 1 and 2 as notice was deemed served. Mr. Benjamin Lalthlamuana, learned Government Advocate appears for the respondent Nos. 3 to 7. 5. Learned counsel Mr. 1 and 2 are declared to be complete. Since the respondent Nos. 1 and 2 remained unrepresented, this Court found it fit to proceed with the matter in the absence of respondent Nos. 1 and 2 as notice was deemed served. Mr. Benjamin Lalthlamuana, learned Government Advocate appears for the respondent Nos. 3 to 7. 5. Learned counsel Mr. C. Lalfakzuala, learned counsel appearing for the appellant submits that this Court admitted the Appeal and the following substantial question of law were formulated by this Court on 09.09.2024 :- ”i) Whether the First Appellate Court erred in law in remanding the case for denovo trial as the suit in question had not been disposed of on a preliminary point by the Trial Court and considering that the decree has also not been reversed in appeal? ii) Whether the First Appellate Court has sufficient material or evidence on record to determine the case on merit?” 6. He has drawn the attention of this Court to the Impugned Judgment wherein, at paragraph-11 of the Judgment and Order the learned First Appellate Court has stated that the Judgment and Order dated 18.10.2021 along with the decree dated 18.10.2021 passed by the learned Civil Judge Senior-IV, Aizawl in Civil Suit 111 of 2011 is hereby, set aside and quashed due to non-consideration of counter-claim preferred by the appellant/defendant No. 1 and No. 2. The suit was then sent back for trial de-novo from the stage of settlement of issues in relation to the counter- claim made by the appellant/defendant No. 1 and 2. With this reasoning and findings the learned First Appellate Court remanded back the suit for de- novo trial. Learned counsel for the appellant states that this remand was against the provision of Order XLI, Rule 23 and Order XLI, Rule 23-A of the Code of Civil Procedure, Act 1908. Learned counsel has referred to the provision of Order XLI rule 23, Order XLI Rule 23-A and Rule 24 of the CPC. Order XLI, Rule 23 which reads as under: “ 23. Learned counsel has referred to the provision of Order XLI rule 23, Order XLI Rule 23-A and Rule 24 of the CPC. Order XLI, Rule 23 which reads 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. Rule XLI 23A states that: “ 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. 24. Where evidence on record sufficient, Appellate Court may determine case finally.” 7. Learned counsel for the appellant has argued that under Order XLI, Rule 23 remand by the Appellate Court can only be resorted to when the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point, or the Appellate Court can also remand back a case when 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. Under Order XLI, Rule 23 the Appellate Court may, if it deems fit, upon remanding the case may further direct what issue or issues shall be tried in the case so remanded with directions to re-admit the suit under its original number in the register of Civil Suit and proceed to determine the suit. Under Order XLI, Rule 23 the Appellate Court may, if it deems fit, upon remanding the case may further direct what issue or issues shall be tried in the case so remanded with directions to re-admit the suit under its original number in the register of Civil Suit and proceed to determine the suit. It is the submission of the learned counsel for the appellant that the learned First Appellate Court was of the wrong impression that the counter-claim preferred by defendant No. 1 and 2/respondent No. 1 and 2 was not considered by the Trial Court and therefore, remanded the case for a de-novo trial from the stage of settlement of issues in relation to the counter-claim made by the defendant No. 1 and 2/respondent No. 1 and 2. However, the learned counsel for the appellant has referred to the counter-claim/written statement of the defendant No. 1 and 2 in the Civil Suit 111 of 2011. Wherein, in the prayer portion the defendant No. 1 and 2 made a prayer that: “a) Let a decree be passed declaring that the P.Patta No.377 of 1978 is invalid/void and the transfer in the name of the plaintiff as illegal and void. Also declare that the said P.Patta is to be treated as non-existent. b) Let a decree be passed declaring that the LSCs Nos. LSCs 105201/01/529 of 2010 and 105201/01/509 of 2010 are valid and the plaintiff cannot have any right to interfere with the peaceful possession of and land and building by the answering defendants. c) Let a decree be passed declaring that all the actions taken against the answering defendants by the revenue department on the basis of the P.Patta No.377 of 1978 are illegal and all such actions are null and void. d) Let a decree be passed declaring that the plaintiff has no right to make any claim to the suit land or interfere with the peaceful possession on the ground of estoppel by acquiescence as he did not make any objection when the answering defendants were doing anything they liked within the suit land.” 8. According to the learned counsel for the appellant the Trial Court/Civil Judge Senior-IV in Civil Suit 111 of 2011 framed 3 (three) issues which also included the issues raised in the counter-claim of the defendant No. 1 and 2/respondent No. 1 and 2. According to the learned counsel for the appellant the Trial Court/Civil Judge Senior-IV in Civil Suit 111 of 2011 framed 3 (three) issues which also included the issues raised in the counter-claim of the defendant No. 1 and 2/respondent No. 1 and 2. He has referred to the issues framed by the learned Trial Court which is reproduced herein: “a. Whether the Plaintiff is the legal owner of Periodic Patta No. 377 of 1978? b. Whether re-validation of Periodic Patta No. 377 of 1978 and transfer in the name of Plaintiff was illegal or not? c. Whether the LSC No.105201/01/529 of 2010 and LSC No. 105201/01/509 of 2010 issued in the name of the Defendant No 1 and 2 is illegal or not?” 9. Learned counsel therefore, submits that the learned Trial Court in Civil Suit 111 of 2011 had clearly taken into account the counter-claim of the defendant No. 1 and 2 in the issues framed for adjudication. 10. Learned counsel for the appellant also states that the said Civil Suit 111 of 2011 was not disposed of on preliminary issues, but it was disposed on merit. Therefore, it is evident that the learned Trial Court had considered the counter-claim and had arrived at a finding after considering the issue raised in the counter-claim. It is the submission of the learned counsel that the First Appellate Court did not satisfy itself on the issues nor arrived at a finding after considering the issues. This was clearly not a case for remanding back for de-novo trial on the issue of the counter-claim, but the learned First Appellate Court should have decided the case on merits. Learned counsel for the appellant has placed reliance on the case of SIRAJUDHEEN versus ZEENATH & ORS. 2023 LiveLaw (SC) 145 and the case of MUNICIPAL CORPORATION, HYDERABAD Versus SUNDER SINGH, (2008) 8 SCC; the relevant paragraph of the Judgment in Sunder Singh (Supra) is re-produced herein below: “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 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. The provisions of Order 2 Rule 2 of the Code of Civil Procedure as also Section 11 thereof could be invoked, provided of course the conditions precedent therefore were satisfied. …………………….” 11. Relying on the above cited Judgment and also in view of the facts and circumstances of the present cases, the learned counsel for the appellant has submitted that the First Appellate Court has committed error in law by remanding the case for de-novo trial as the suit in question had not been disposed of on a preliminary point by the trial court and moreover, the First Appellate Court had sufficient material or evidence on record to determine the case on merit. 12. Learned counsel has accordingly, prayed that the Impugned Judgment and Order dated 07.09.2023 passed by the learned Additional District Judge- 1, Aizawl in RFA 11 of 2021 may be set aside and quashed and this Court may direct the learned Additional District Judge/First Appellate Court to determine the appeal on merit. 13. Learned Government Advocate, Mr. Benjamin Lalthlamuana appearing on behalf of the State respondent has stated that the brief has been handed over to him recently, and he has not received any instructions in the present case. Be that as it may, the Government is only a pro-forma Respondent in the present case and the present dispute in the instant appeal is between the appellant and the respondent No. 1 and 2. 14. Be that as it may, the Government is only a pro-forma Respondent in the present case and the present dispute in the instant appeal is between the appellant and the respondent No. 1 and 2. 14. The court has traversed through the entire records available and considered the submissions of the appellant as well as the authorities relied upon. 15. When a counter claim if filed, the trial court has the discretion to frame separate issues or common issues that include the issues raised in the counter claim. Framing common issues can simplify the trial by avoiding duplication of issues and expedite the trial process. This Court finds that the trial court in Civil Suit No. 111 of 2011 has considered the issues raised in the counter claim of the defendants 1 & 2/respondent 1 & 2 and framed common issues. The suit was thereafter disposed on merits. It was not a case where the suit was decided on preliminary issues. It was also not a case where the decree of the trial court was reversed in appeal by the first appellate court. 16. In the case of Shivakumar & others Vrs Sharanabasappa & others reported in (2021) 11 SCC 277 , the Hon’ble Supreme Court held that: "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 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.” 17. The above observation of the Apex court would show that the provision of remand under Order 41 Rule 23 and 23A is to be exercised sparingly and only when there is no sufficient evidence on record. In the case at hand such is not the case. The trial court had already framed issues considering the counter claim of the defendants 1 and 2. The parties had adduced all their evidence and the trial court had certainly considered the counter claim and arrived at a finding. The learned first appellate court therefore should have decided the appeal on merit instead of remanding back for de-novo trial from the stage of settlement of issues in relation to the counter-claim made by the defendants 1 and 2. 18. As a result, the appeal is allowed. The Judgment and Order dated 07.09.2023 passed by the Additional District Judge-1, Aizawl in RFA 11 of 2011 is quashed and set aside. The case is remanded back to the learned first appellate court. Learned Additional District Judge-1, Aizawl shall hear the appeal and dispose of the same on merit as there is sufficient evidence on record in terms of Rule 24 of Order 41 CPC. 19. The appeal stands disposed of. No order as to costs.