The appellate court must provide justifiable reasons for remanding a case and cannot do so merely to allow a party to rectify their negligence.

JUDGMENT :

1. Heard Mr. N.S. Shah, learned advocate holding for Mr. S.V . Natu, Advocate for the appellant and Smt. H.N. Jadhav, Advocate for respondent Nos. 1 and 5. Although respondent Nos. 2,3 and 4 are served with the notice of this appeal, they failed to cause their appearance.

2. By consent of parties, appeal is heard on the following substantial questions of law :-

[I] Whether the appellate court was justified in remanding the case to the trial court by setting aside the judgment and decree dated 25.6.2017 passed by the trial court in R.C.S. No. 37 of 2013 ?

[II] Whether the appellate court exercised jurisdiction within the parameters of Order 41 Rule 23 of C.P.C.

3. Brief facts of the case, necessary for adjudication of the present appeal are summarized as under :-

Appellant/plaintiff had instituted R.C.S. No. 835 of 2003 against the respondents/defendants seeking a decree of perpetual injunction in respect of the suit property i.e. land Gat No. 17 admeasuring 82R situated at village Shuli Bhanjan, Taluka Khultabad, Dist. Aurangabad. The said suit was decreed in favour of the plaintiff and the deceased-defendant Kachru Kondiba Jadhav was restrained from causing obstruction or making encroachment over the suit property.

According to plaintiff, in wake of such injunction, Kachru Jadhav raised construction of house in Gat No. 17, adjacent to Khultabad-Shulibhanjan Road, by making encroachment to the extent of 15x20 feet area over the suit property. The plaintiff had, therefore, adopted recourse of execution in R.D. No. 151 of 2006. The Executing Court was pleased to appoint a Court Commissioner to find out the encroachment, if any, at the hands of the defendant/judgment debtors. The Court Commissioner submitted his report dated 8.6.2012 alongwith measurement map, which depicts defendants encroachment on the suit land. However, the Execution Proceeding was disposed of with observation that the Executing Court cannot go beyond the decree. Consequently, plaintiff/appellant instituted present suit / R.C.S. No. 37 of 2013, seeking delivery of possession by removing encroachment shown in measurement map. The defendants appeared in the suit through advocate, filed written statement contending that land in the ownership and possession of the plaintiff is situated in Gat No.17, alleged measurement map is incorrect, the construction raised by defendants is on altogether different land than Gat No. 17.

The plaintiff examined two witnesses in support of his case.

PW-2 Anil is a cadastral surveyor, who approved the measurement map indicating encroachment of defendants over the plaintiff’s land.

Unfortunately, defendants failed to cross examine the witnesses.

Consequently, “No Cross” order was passed. The defendants failed to avail opportunity to lead evidence. Eventually, evidence was closed, after giving opportunity to the defendants. Finally, trial court accepted the case of the plaintiff and decreed the suit for possession. It is a matter of record that decree is already executed and on 29.9.2015, the possession of encroached area is handed over to the plaintiff. The respondents/defendants filed Regular Civil appeal No. 53 of 2022 before the District court in the year 2018 alongwith application for condonation of delay. Although, appellate court had declined, this Court condoned the delay and directed registration of appeal. Consequently, appeal was taken up for hearing on merit and came to be allowed vide impugned order dated 23.10.2023, by which the judgment and decree passed by the trial court has been quashed and set aside and suit has been remanded back to the trial court with direction that the suit be re-registered and defendants be granted opportunity to cross-examine plaintiff’s witnesses, adduce own evidence and decide the case afresh.

4. Mr. N.S. Shah, learned advocate for the appellants vehemently submits that trial court failed to follow mandate under Order 41 Rule 23 of C.P.C. and mechanically remanded the matter back to the tria