JUDGMENT :

1. The present miscellaneous appeal has been filed by the defendants-appellants against the impugned judgment dated 28.10.2009 passed by the Court of learned Additional District and Sessions Judge (Fast Track) No.2, Karauli (for short ‘the First Appellate Court’) whereby the civil appeal No. 9/2009 filed by the plaintiff-respondent was allowed and after setting aside the judgment dated 06.12.2001 passed by the Court of Civil Judge (Junior Division), Karauli (for short ‘the trial Court’) in civil suit No. 170/1992, the case was remitted back to the trial Court for fresh decision after framing an additional issue.

2. The facts in brief of the case which are relevant for adjudication of this appeal are that the plaintiff-respondent filed a suit for eviction and recovery of rent against the defendants appellants before the trial Court against which the defendants appellants submitted written statement and denied the averments of the plaint. On the basis of pleadings of the parties, the trial Court framed as many as seven issues including issue No.5 i.e. ‘in absence of any premises the plaintiff would suffer inconvenience in comparison to the defendants’. The trial Court partly decreed the suit and directed the defendants to pay the arrears of rent and the prayer for eviction was declined.

3. Feeling aggrieved and dissatisfied with the impugned judgment and decree dated 06.12.2001, the plaintiff-respondent submitted an appeal before the First Appellate Court and the same was allowed and the First Appellate Court framed an additional issue and quashed and set aside the judgment and decree dated 06.12.2001 passed by the trial Court and directed the trial Court to decide this additional issue after taking evidence of both sides as per law.

4. Learned counsel for the defendants appellants submitted that there was no need to frame an additional issue. Both the parties had gone through the trial fully knowing the rival cases and had led all evidence in support of their case. Counsel further submitted that no such request for framing additional issue was ever made by the plaintiff before the trial Court where the suit remained pending for about nine years. Counsel further submitted that full fledged, thorough and detailed cross-examination was made in this regard from the witnesses and even this issue was already decided by the trial Court while deciding issue No. 5. Counsel for the defendants-appellants has placed reliance on a judgment delivered by the Hon’ble Apex Court in the case of J.Lingaiah and Ors. Vs. G. Hanumanthappa and Ors., reported in (2001) 10 SCC 751 wherein the Hon’ble Apex Court quashed and set aside the order of remand by the Appellate Court to the trial Court.

5. Per contra, learned counsel for the plaintiff-respondent submitted that during pendency of the suit, construction was carried out by the defendants-appellants near Sainath Khidkiya and for that purpose an amended suit was submitted before the trial Court and the trial Court did not frame any additional issue and erroneously partly rejected the plaint filed by the plaintiff. Counsel further submitted that no illegality has been committed by the First Appellate Court by way of framing additional issue in this regard and no illegality has been committed by the First Appellate Court in remanding the matter to the trial Court for deciding this additional issue after granting opportunity to both sides and deciding the matter afresh. Learned counsel for the plaintiff respondent has supported the order passed by the First Appellate Court.

6. Heard. Considered the arguments raised by counsel appearing for the parties, perused the impugned order and gone through the record of the case.

7. Rules 23, 23-A, 24, 25 and 26 of Order 41 C.P.C. deal with the remand of cases by the appellate court. Rule 23 deals with a case of remand where the suit has been disposed of on a preliminary point and Rule 23-A which was inserted by CPC Amendment Act of 1976 deals with the powers