JUDGMENT :

The appellants and respondents herein who are plaintiffs and defendants in the suit respectively, hereinafter referred to as Plaintiffs and defendants respectively. The plaintiffs filed the suit to declare the gift deed executed by the 1st defendant in favour of the 2nd defendant is not binding on the plaintiff and for consequential relief of permanent injunction. The suit OS No.129 of 2012 was dismissed by an order dated 18.11.2017 by the Junior Civil Judge, Rajampet.

2. Aggrieved by the said judgment and decree in O.S. No.129 of 2012 on the file of the Junior Civil Judge, Rajampet, the Plaintiff filed an appeal vide A.S. No.4 of 2018 on the file of the III Additional District Judge, Rajampet. The Lower Appellate Court Judge by an order dated 06.07.2022 has set aside the judgment and decree in the suit and remanded back to the trial court.

3. Against the said remand order, the plaintiff has filed the present Civil Miscellaneous Appeal. It is the contention of the plaintiff that the 1st appellate court failed to see the evidence on record which is sufficient to decide the matter by framing issue and remanding the matter to lead additional evidence and additional written statements. Leading the evidence may cause unnecessary delay in disposal of the suit. The other grounds raised by the plaintiff, which are disputed facts, which have already answered by the trial court.

4. It appears from the record that the plaintiff filed an amendment petition seeking relief of declaration of title apart from the relief to declare the gift deed executed by the 1st defendant in favour of the 2nd defendant is not binding upon them. As the suit has become comprehensive suit, the lower appellate court has remanded the matter to the trial court to give an opportunity to defendants to file additional written statement and after receiving the additional written statement to frame an additional issue basing on the pleadings and after settlement of additional issue, the court shall afford opportunity to both parties to lead evidence on such issue and give a finding on such issue. Holding that it is nothing but a fresh trial, therefore, suit is remanded to the trial court for fresh disposal.

5. It is the contention of the plaintiff, the appellate court ought to have been undertaken the said process and ought to have been framed an issue and can be dealt with accordingly by the appellate court. Therefore, remanding the matter to the trial court is bad in law and relied on the following judgments.

6. The Supreme court while dealing the issue for remanding held that in Uttaradi Mutt v. Ragavendra Swamy Mutt, (2018) 10 SCC 484 when no case was made out to adduce additional evidence and in that event the entire case could not have been remanded to the trial court for fresh disposal after recoding fresh evidence as this case was not a case envisaged under order 41 Rule 23 of CPC when the lower appellate court cannot remand without any special reasons recorded as to why the party should be recorded before the trial court to re-decide the suit.

7. The Honble Supreme Court in H.P. Vedavyasachar vs. Shivashankara and Ors., 2009 (8) SCC 231 when High Court cannot clear up the trial court to dispose of the suit after taking evidence under order 41 Rule 27 in Kesava Reddy v. A. Visupaksha Reddy, 2016 (1) ALD 564, the composite High Court of Andhra Pradesh has held that when an additional evidence produced for the first time before the appropriate court remanding of case to trial court for adjudication of suit a fresh after taking on recording of additional evidence is not permissible in view of order 41 Rule 28. In Saraswathi Devi Vs. Jujjurn Satyanarayana Raju, (1985) 2 ALT 478 the High court of Andhra Pradesh after following the judgment of the Honble Apex Court the power under Order 41 rule 23 is wide amplitude and of discretionary in nature but the discretion should not be exercised arbitrarily but with circumspection guided by sound and reasonable judicial