Important Point- Law and Procedure is well-settled regarding Remand and Production of Additional Evidence at Appellate Stage which must be followed by the appellate court.

R.D. Kothari, J.

1. This is plaintiff's appeal. It is unusual in more than one sense. One reason for saying so is - the appeal which is admitted earlier is against the order of remand and yet it is likely to be allowed.

2. Few relevant facts are, thus; one Manilal had various parcels of land in Surat District. Couple of properties are residential houses and almost rest of all the properties are agricultural lands. The odd fact is that Manilal was residing separately from his wife and his three sons. He had instituted a suit from which the present appeal arises. The said suit is Special Civil Suit No. 76 of 1982, it is for declaration and injunction, sought against his wife and sons. In substance, the relief prayed for is - declaration that properties mentioned in the plaint are his personal properties and he is in possession of the same. A declaration was also sought that defendants have no right, title and interest in the suit property. It also appears from the record that in respect of suit properties, a criminal complaint was also lodged. On apprehension of filing civil suit, caveat was also filed. Manilal failed to get interim relief. Said Manilal died during the pendency of the suit. He had said to have executed a Will. It is stated to be a registered Will. On the strength of that Will, one of the defendants/son i.e. Ishwarbhai applied for transmitting him as plaintiff from the defendant. He had also applied for amendment in the plaint. It is apparent that said application of Ishwarbhai was allowed and Ishwarbhai had become the plaintiff in the suit and amended suit proceeded. The defendants contested the suit. Said suit came to be partly decreed. The trial court had held that plaintiff has 1/4th share in the suit property.

2.1 Aggrieved by the decree of the trial court, one of the defendants - brother, namely, Dineshbhai filed an appeal before the District Court i.e. Civil Appeal No. 20 of 2006. The District Court was pleased to allow the appeal and remand the case to the trial court. In this Appeal from Order, the remand order is under challenge.

3. Heard learned advocates for the parties.

4. Shri D.D. Vyas, learned Senior Advocate for the appellant, after briefly referring the facts of the case, has drawn attention to relevant part of the impugned judgment. It was submitted that broadly saying, the appellate court has found that some material and relevant documents are not brought on record, hence, the remand found necessary by the appellate court. The procedure adopted by the appellate court is patently illegal. It was submitted that provision of Order 41 Rule 27, 28 and 29 are totally given go-bye. Attention was also drawn to other provisions of CPC. Not having on record the material and relevant documents mainly weighed with the appellate court, however, the procedure adopted by it is patently illegal, the appeal should be allowed on this ground alone. Shri D.D. Vyas has also drawn attention to a decision of this Court in case of Gamanbhai Purshottambhai Patel & Anr. v. Jivanbhai Purshottambhai Patel, reported in 1996 (1) GLR 771. Relying on the same, it was submitted that no case for remand is made out by the appellant. Attention was drawn to Para.11 to 19. Relying on the same, it was contended that remand order should be made only on 'rarest of rare case.'

5. On the other hand, Shri R.R. Marshall, learned Senior Advocate with Mr. Arpit Kapadia, learned advocate for respondent No. 2, supporting the order of remand, has pointed out that the appellate court has given reasons for remanding the matter and reasoning given by it, cannot be said to be bad or illegal. It was submitted that the appellate court has rightly found that defendants had no opportunity to lead the evidence. It was also pointed out that fact of passing of an award by the arbitrator qua the suit property is not disputed by the plaintiff and that being so, when this fact weighed with the appellate court, no fault can be found in course adopted by