The appellate court must properly consider existing evidence and procedural requirements before remanding, ensuring fairness in addressing substantive claims.

JUDGMENT :

Anant Ramanath Hegde, J.

This Miscellaneous Second Appeal is filed assailing the judgment and decree in R.A.No.108/2019 on the file of II Additional Senior Civil Judge, Chickballapur.

2. In terms of impugned judgment and decree, the appeal is allowed in part on payment of cost of Rs.5,000/- payable by the appellants/ defendants before First Appellate Court to the plaintiff/respondent No.1 before First Appellate Court.

3. First Appellate Court remitted the matter to the Trial Court to recast Issues No.1 to 4 and to provide opportunity to both the parties to adduce evidence.

4. Learned counsel appearing for the plaintiff/appellant would submit that First Appellate Court could not have remanded the matter by setting aside the entire judgment and decree. Assuming that the respondents/ defendants have made a ground for production of additional documents and made a ground for remanding the matter to enable them to lead evidence, still could have retained the appeal in its file and could have framed the issues and could have permitted the parties to lead evidence and could have secured the findings on those issues.

5. To substantiate his contention, learned counsel would submit that the suit was once decreed in favour of the plaintiff/appellant. Then the defendants filed an appeal and appeal was allowed and the matter was remanded to afford opportunity to the defendants to lead evidence, as defendants did not lead evidence in the first instance. Thereafter, defendants though led examination-in-chief did not subject themselves to the cross- examination and evidence was taken as nil and rightly the suit is decreed.

6. Though some additional documents are produced before First Appellate Court to substantiate the contentions raised by the defendants, the remand of the matter by setting aside the entire judgment and decree was totally uncalled for under Order XLI of the Code of Civil Procedure and thus would contend that the judgment and decree has to be set aside and First Appellate Court should be directed to hear the appeal on merits.

7. Learned counsel for the defendants/respondents would contend that the defendants have raised a specific contention that the suit is bad for non-joinder of necessary parties and the vendor who allegedly sold the property to the plaintiff did not have absolute right over the property and the property was jointly owned by several other persons and the suit without making those persons as necessary parties is defective and under these circumstances, First Appellate Court is justified in remanding the matter to the Trial Court.

8. It is further submitted that the defendants/appellants before First Appellate Court have also produced additional documents to substantiate their contention and First Appellate Court also felt that the documents are necessary for adjudication of the case on hand and having allowed the application while considering the appeal on merit is justified in remanding the matter to the Trial Court.

9. Learned counsel for the plaintiff/appellant would also urge that initially the suit was filed by two plaintiffs and said suit was decreed and the appeal filed by the defendants was allowed and matter was remitted to the Trial Court for fresh consideration. At that point of time, plaintiffs No.1 & 2 did not get along well with each other, as such an application is filed to transpose plaintiff No.2 as one of the defendants and the plaint was suitably amended and plaintiff only sought declaration of 1/2 share. And now the relationship between plaintiff No.1 and plaintiff No.2 is cordial and plaintiff No.2 is no more, and legal representatives of plaintiff No.2 are already on record as respondents No