The Lower Appellate Court must properly consider the issues framed by the trial court and the findings rendered thereupon before remanding the matter for retrial.

1. This appeal from order takes an exception to the judgment and order passed by the District Judge-1 Beed in R.C.A.No.117/2007 dated 8.10.2012. Since the facts of case are extensively stated in R.C.S.No.52/2000, it is not necessary to repeat the same. As and when it is necessary, this Court will refer the relevant facts.

2. By way of the impugned judgment and order, the lower Appellate Court remanded the matter to the trial court for deciding it a fresh by framing appropriate issues as discussed in reasoning part of the Lower Appellate Court’s Judgment. Applications Exh.35 and Exh. 47 filed by the original appellant are allowed subject to costs of Rs.500/-. Liberty is given to the trial Court to decide the issues by giving opportunity of leading further evidence to both the parties as per law. Both the parties were directed as to remain present before the Trial Court on 1.11.2012. There are other directions as well given by the District Court, Beed.

3. Learned counsel appearing for the appellant herein invited my attention to the issues framed by the Trial Court and submitted that, Trial Court has framed as many as 5 issues for its consideration/determination and extensively dealt with the said issues thereby allowing the parties to lead evidence. It is submitted that upon appreciation of evidence/material placed on record by the parties certain findings are recorded by the trial Court. It is submitted that the trial Court has recorded that respondent no.1 herein is the encroacher on the suit land. The contention of the respondent no.1 that he has become member of the appellant Co-operative Society has been turned down by the Trial Court. Learned Counsel also invited my attention to other findings recorded by the trial court and submitted that the Lower Appellate Court without adverting to each issue framed by the trial Court and finding rendered thereupon, proceeded to decide the appeal. It is submitted that Lower Appellate Court ought to have considered the evidence on record and should have decided the appeal either way. It is submitted that in absence of any specific ground in appeal to frame additional issues, Lower Appellate Court proceeded to frame additional issues and remanded the matter back to the Trial Court for fresh trial. It is submitted that, such remand order would be beyond the scope of provisions of Order 41 Rule 23A of the Civil Procedure Code. It is submitted that an application filed by the respondent no.1 under Order 41 Rule 27 of the Civil Procedure Code and also an application for amendment of the written statement was allowed by the Lower Appellate Court at the stage of final hearing of the appeal without affording opportunity to the appellants to put forth their contention. Learned counsel for the appellant placed reliance upon the reported judgment of this court in the case of Kattukandi Edathil Krishnan and Another Vs. Kattukandi Edathil Valsan and Others reported in 2006 (9) Supreme Court Cases 166 and in particular paragraph no.5 thereof. It is submitted that the Appellate Court ought to have considered the evidence on record for the purpose of disposing of the case and should have allowed the appeal or confirmed the judgment and order of the Trial Court after re-appreciation of the evidence. Therefore, relying upon the grounds taken in appeal memo, annexures thereto, submissions advanced across the bar and judgment [cited Supra], learned counsel for the appellant submits that Appeal From Order deserves to be allowed and hence, same may be allowed.

4. On the other hand, learned counsel appearing for respondent no.1 invited my attention to the additional issues framed by the Lower Appellate Court and submitted that those issues were necessary for appropriate adjudication of the suit. However, those issues were not framed by the trial court. It is submitted that upon considering the facts and law involved in the case, Lower Appellate Court is empowered to frame the additional issues. It