This Civil Miscellaneous Appeal arises out of the judgment and decree, dated 25-08-2014, in AS.No.60 of 2012, on the file of the Court of the learned II Additional District Judge, Kurnool at Adoni, whereby he has remanded the case to the Court of the Junior Civil Judge, Aluru, for considering the additional documentary evidence filed by respondent Nos.2 to 6, who are the appellants before it, and to answer the issues afresh.

I have heard Mr. M.Radha Krishna, learned Counsel for the appellant, and Mr. K.Sitaram, learned Counsel for respondent Nos.2 to 6. One Virupaksha Reddy filed OS.No.170 of 2006 for declaration of his title to the plaint schedule property and also for permanent injunction restraining the petitioner and respondent Nos.7 and 8 herein from interfering with his peaceful possession and enjoyment of the plaint schedule property. After filing the suit, the sole plaintiff died. Respondent Nos.2 to 6, who have come on record as his legal representatives, have pursued the suit. By judgment and decree, dated 23-04-2012, the trial Court has dismissed the suit. Feeling aggrieved by the said judgment and decree, respondent Nos.2 to 6 have filed AS.No.60 of 2012. In the appeal, respondent Nos.2 to 6 have filed certain additional documents viz., certified copy of registered sale deed bearing document No.1826/69, certified copy of the judgment and decree in AS.No.17 of 2005, certified copy of 1-B register, statement of subdivision and the Adangal for the fasli 1421. The lower appellate Court marked these documents as Exs.A.6 to A.10 respectively. It has also framed three points and after discussing those points, it has felt that in the absence of Ex.A.6, the lower Court was justified in rejecting the relief of declaration of title and that the said document cannot be examined by the appellate Court without giving a fair opportunity to both parties to adduce evidence in respect thereof. It has further observed that if the appeal is allowed based on Ex.A.6, it will deny the defendants the opportunity to question the said document. The lower appellate Court has, therefore, remitted the matter to the trial Court for considering the additional documentary evidence filed by the appellants before him and deciding the suit afresh after giving a fair opportunity to both the parties. Feeling aggrieved by the said judgment, the first defendant has filed this Civil Miscellaneous Appeal.

The learned Counsel for the appellant has submitted that the lower appellate Court has committed a grave procedural illegality in remanding the case for fresh disposal by the trial Court. In support of his submission, he has placed reliance on Rule 28 of Order XLI of the Code of Civil Procedure, 1908 (CPC) and also on the judgment of the Supreme Court in H.V. Vedevyasachar vs. Shivashankara and another (2010 (2) ALD 86 (SC).

The learned Counsel for respondent Nos.2 to 6 sought to support the procedure followed by the lower appellate Court.

I have carefully considered the respective submissions of the learned Counsel for the parties. Order XLI CPC deals with Appeals from original decrees. Under this Order, the appellate Court is conferred with the power to remand the appeals in three different situations. First, under Rule 23, where an appeal is preferred against a decree, based upon a preliminary point, and in case that decree is reversed in appeal, the appellate Court may, by order, remand the case for disposal on merits. Second, under Rule 23-A, where an appeal is preferred against a decree, based on issues other than the preliminary point, and in case that decree is reversed in appeal and a re-trial is considered necessary, the appellate Court will have the same powers as it has under Rule 23. Third, under Rule 25 also, the appellate Court may remand the case after framing certain additional issues.

However, where additional evidence is produced for the first time before the appellate Court, as in the instant case, Rules 27 and 28 of Order XLI