ORDER :

D.V.S.S. Somayajulu, J.

1. This civil miscellaneous appeal is filed questioning the order, dated 18.7.2018, passed in AS No. 225 of 2008 by the learned XI Additional District & Sessions Judge, Visakhapatnam. By the impugned judgment the appeal was allowed setting aside the decree and judgment dated 23.6.2008 in OS No. 40 of 1997 passed by the learned Junior Civil Judge, Bheemunipatnam and the matter was remanded to the 1st Court to receive the additional evidence filed by both the appellant and the defendants.

2. This Court has heard Sri M. Radha Krishna, learned Counsel for the appellant and Sri P. Rajasekhar, learned Counsel for the respondent.

3. Learned Counsel for the appellant relied upon number of judgments of the Hon'ble Supreme Court of India reported in Uttaradi Mutt v. Raghavendra Swamy Mutt, 2018 (6) ALD 102 (SC) : (2018) 10 SCC 484; H.P. Vedavyasachar v. Shivashankara and another, (2009) 8 SCC 231 and Shanti Devi v. Daropti Devi and others, (2006) 13 SCC 775 and the judgment of a learned Single Judge of this Court reported in Kesava Reddy v. A. Virupaksha Reddy and others, 2016 (1) ALD 564.

4. Learned Counsel for the appellant argued that the lower Court committed a fundamental error in remanding the matter to the lower Court. It is his contention that the procedure prescribed under Order 41 Rule 27 of CPC has not been followed at all. Learned Counsel submits that after the Court was convinced that the additional evidence is to be received the procedure prescribed under Order 41 Rules 28 and 29 of CPC has to be followed and that the appellate Court has a discretion either to receive the evidence by itself or to direct the lower Court to receive the evidence and send back the finding. It is his contention that allowing the appeal is not called for in the circumstances.

5. In reply to this learned Counsel for the respondent argued that there is no error committed by the Court below and that once the Court came to the conclusion that additional evidence is necessary, the Court had the option of sending the matter back to the lower Court. Learned Counsel relied upon the judgment of the Supreme Court in The Corporation of Madras and another v. M. Parthasarathy and others, 2018 (5) ALD 201 (SC) : (2018) 9 SCC 445 and argued that the Court has the power under Order 41 Rule 23-A of CPC to set aside the judgment and decree of the lower Court and that in view of this judgment the Trial Court could frame additional issues and decide the suit afresh. Therefore, learned Counsel contends that there is no error in the impugned order.

6. Learned Counsel for the appellant essentially relied upon the grounds, which are raised by him in Para 13 of the grounds of appeal.

7. Order 41 Rule 23 of CPC deals with remand of a case by the appellate Court. If the original lis has been disposed of on a preliminary point and the appellate Court has decided to reverse the said finding, the appellate Court may direct the remand of the matter and may also direct what issue or issues should be tried by the Trial Court. Even otherwise, as per Order 41 Rule 23-A of CPC after the decree is reversed in appeal and a retrial is considered necessary the appellate Court has the power to remand the case. Therefore, Order 41 Rules 23 and 23-A of CPC deal with a situation where the finding is reversed in appeal and the appellate Court feels that there is a need for further evidence.

8. If, however, the Court is of the opinion that the available evidence is sufficient it can decide the case on its own and without remand and can decide the case finally.

9. If, however, the appellate Court feels that the lower Court has omitted to frame any issue, failed to try any issue or determine a question of fact, which the appellate Court deems essential, then the appellate Court may frame issue/issues by itself and refer the same to the lower Court for a trial and for taking additional evidence on such issue/s. The lower Court shall after recording the evidence on the spe