IMPORTANT POINT
The appellate court has the authority to decide cases based on available evidence and should only remand cases when necessary, providing clear reasons for such decisions.

JUDGMENT :

(Madan Gopal Vyas, J.) :

This civil misc. appeal under Order 43 Rule 1(u) read with Section 107 CPC has been preferred by the appellant-defendant against the impugned judgment dated 18.09.2023 passed by learned Additional District Judge No.1, Nagaur (for short, learned 'appellate Court') in regular appeal No.148/2013(14/2013), whereby learned appellate Court, while partly allowing the appeal, quashed and set aside the judgment and decree dated 23.09.2013 passed by learned Civil Judge (Jr. Division), Nagaur, (for short, 'learned trial Court'), in civil original suit No.68/2008, remanded the matter back to learned trial Court for deciding the suit afresh after considering the oral and documentary evidence.

2. The facts in nutshell are that the respondents-plaintiffs herein preferred a suit seeking decree of declaration and permanent injunction before the learned trial Court. In the suit, it was averred that the then Chairman of Municipal Board was trying to sell the pattasuda land of the plaintiffs to other persons and he wanted to dispossess the plaintiffs. Therefore, suit was preferred by the respondents-plaintiffs herein seeking the aforesaid reliefs. Thereafter, the appellant-defendant submitted written statement to the said suit denying the averments made therein and stated that the appellant-defendant is the sole owner of the disputed land and after procuring the required reports, removed the encrochees over the land of Khasra No.53.

3. On the basis of the pleadings of the parties, learned trial Court framed four issues for determination. The plaintiff examined as many as six witnesses and exhibited six documents and defendant examined three witnesses and exhibited nineteen documents. Thereafter, vide judgment and decree dated 23.09.2013, learned trial Court rejected the suit preferred by the plaintiffs. Thereafter, the respondents-plaintiffs herein preferred an appeal before the learned appellate Court. Learned appellate Court, vide judgment dated 18.09.2023, while partly allowing the appeal of the respondents-plaintiffs, quashed and set aside the judgment and decree dated 23.09.2013 and directed the learned trial Court to decide the suit afresh after taking into consideration the documentary and oral evidence with regard to disputed land. Aggrieved by the judgment and decree dated 18.09.2023 passed by learned appellate Court, the appellant-defendant has preferred the present civil misc appeal.

4. Arguing on the present appeal, learned counsel appearing for the appellant-defendant submits that the learned appellate Court has committed grave illegality while quashing and setting aside the judgment and decree of learned trial Court without reversing the findings recorded by it. It is further submitted that as per Order 41 Rule 23 CPC, a remand order requires that the appellate Court directs the learned trial Court specifically as to what issue or issues shall be tried in the case so remanded but in the present case, learned appellate Court without assigning any reason, straightway remanded the matter. It is further submitted that all the material was available with the learned appellate Court and the learned appellate Court could pass the order on merits. It is further submitted that a bare perusal of Rules 23, 23A and 24 of Order 41 CPC would make it clear that non-consideration, failure or mis-appreciation of an issue may not be a ground to order remand of the case, when the evidence on record is sufficient for determination of the issue by the appellate Court. Thus, it is submitted that it was within the permissibility of the learned appellate Court to take up and consider every issue and to determine the same when the evidence was available on record for its adjudication. However, learned appellate Court has wrongly remanded the matter back to learned trial Court. It is further submitted that learned appellate Court was under an obligation to decide the lis between the parties unless it came to a definite find