Remand of cases is impermissible without unresolved issues, and amendments at the appellate stage should not be allowed.

JUDGMENT :

1. Appellants are the defendants who have preferred second appeal against the judgment dated 09.06.1997 passed in Title Appeal No.56 of 1991 setting aside the judgment and decree dated 30.031991 passed Sub Judge-II, Latehar in Title Suit No.67 of 1987.

2. The plaintiff filed the suit for partition of the properties fully detailed in Schedule of the plaint.

3. The first appellate court reversed the judgment and decree in question and remanded the case back to the court below with liberty given to the plaintiff to amend the plaint and defendants to have an opportunity to file written statement.

4. This second appeal has been admitted to be heard on the following substantial questions of law:-

I. Whether the lower appellate court could have remanded the matter to the trial court without setting aside the findings of the said court?

II. Whether without setting aside the findings of the trial court about ownership of Thomas Toppo in respect of suit property, merely on the assertion in the amendment petition by the plaintiffs at a late stage the lower appellate court could have allowed the amendment petition and remanded the matter to the trial court?

5. It is argued by the learned counsel on behalf of appellants that the mandate of law is that without reversing the finding which was permissible for the first appellate court to have remanded the matter to the trial court giving direction to the plaintiff to amend the plaint. The first appellate court although set aside the judgment and decree, but nowhere has reversed the finding of the trial court.

6. No one appears on behalf of respondents for hearing in the matter.

7. This is an old second appeal of the year 1997 and counsel on behalf of the Respondent is not appearing for hearing, despite repeated call.

8. Having considered the submissions advanced on behalf of the appellants and on perusal of record of the case, it is apparent that plaintiff had earlier filed a petition for amendment of the plaint before the trial court which was rejected by the trial court against which revision was preferred before this Court, but the same could not be decided till disposal of the suit. After disposal of the suit, the High Court in Civil Revision No.599/1990(R) disposed of the revision as infructuous giving liberty to the petitioner/plaintiff to challenge the impugned order before the appellate court.

Considering the prayers made, the first appellate court allowed the amendment application and considering the evidence on record, remanded the case to the trial court.

9. On perusal of the amendment that was allowed by the first appellate court and find reference in para 17 of the judgment. On account of Panchayti held on 09.05.1978, after death of Thomas Toppo in the presence of plaintiff and defendant nos.1 and 4. This proposed amendment is more in the nature of evidence regarding cessation of unity of title and possession and partition which the plaintiff was otherwise also not precluded from adducing at the trial Court. Essence of a pleading is that it is averments of fact and not of law or evidence to support the said case. Since it was a case of partition therefore, both the sides were at liberty to bring evidence in support of the contention of partition having taken place or not. Amendment is in the nature of evidence and the same should have not been allowed by the first appellate Court.

10. On the substantial question of law, there is not bar to remand a case after setting aside the judgment and decree by the trial Court. Order XLI Rule 23 reads as under

“Where the Court from whose decree the appeal is preferred has disposed of the suit on a preliminary point and the decree is reversed in appeal , the Appellate Court if it thinks fit remand the case and may further direct what issues or issues shall be tried in the case so remanded, and shall send a copy of its Judgment or order to the Court from whose Judgment the appeal is preferred, with direction to readmit the suit in its origina