Point of Law: Framing additional issues -Appellate Court is empowered to frame additional issues or re-settle the issues or accept additional evidence or examine the witness if required by affording opportunity to the parties and decide the matter finally, instead of remanding the matter back to the Trial Court. When such powers are conferred on the Appellate Court under the Code of Civil Procedure, the Appellate Court is expected to be cautious, while remanding the matter back to the Trial Court

JUDGMENT :-

(Prayer: Civil Miscellaneous Appeal is filed under Order 43, Rule 1(u) r/w Section 151 of Civil Procedure Code against the judgment and decree dated 03.04.2019 passed by the learned II Additional Sub Judge, Salem in A.S.No.67 of 2017, allowing the judgment and decree dated 29.02.2016 passed by the learned I Additional District Munsif, Salem in O.S.No.2062 of 2004.)

1. The judgment and decree dated 03.04.2019 passed by the learned II Additional Sub Judge, Salem in A.S.No.67 of 2017, is under challenge in the present Civil Miscellaneous Appeal.

2. The plaintiffs are the appellants, defendants are the respondents and the suit was instituted for declaration and other reliefs.

3. The suit is decreed in favour of the plaintiffs and the defendants filed A.S.No.67 of 2017.

4. The First Appellate Court elaborately considered the facts and circumstances as well as the findings of the Trial Court and finally delivered the judgment, remanding the matter back for framing additional issues. Thus, the appellants are constrained to file the present Civil Miscellaneous Appeal.

5. Learned counsel for the appellants contended that the remand order was passed, directing the Trial Court to frame additional issues with respect to the validity of Power of Attorney Deed dated 05.03.2003; validity and enforceability of Sale Agreement executed by the first defendant in favour of the second defendant dated 06.03.2003; validity of Sale Deed executed by the first defendant in favour of the second defendant dated 18.03.2004 and also as to notice of termination of Power of Attorney; afford opportunity to both sides to produce additional evidence, if any, on additional issues and dispose of the matter as expeditiously as possible.

6. The question arises whether such remand is required in the given circumstances and whether the First Appellate Court is right in remanding the matter back to the Trial Court for framing additional issues.

7. This Court is of the considered opinion that remand is an exception. The Appellate Court is expected to dispose of the appeal on merits and in accordance with law and the lis must reach its finality and only on exceptional circumstances, if the First Appellate Court cannot dispose of the appeal on merits, then alone the option of remand is to be exercised. In the event of remanding the matter in a routine manner, the same would cause prejudice to the interest of the parties to the litigation. Remand will result in prolongation of the litigation and further the parties would get frustrated in the event of remand unnecessarily.

8. In this Regard, Section 107 of the Code of Civil Procedure, enumerates that the Appellate Court has got powers to frame additional issues, additional evidences etc., for the purpose of disposing the appeals. Order XLI, Rule 23 provides remand of case by the Appellate Court.

9. Such a remand is to be made by the Appellate Court subject to Rule 24 of Order XLI and if the suit is disposed of on certain preliminary issues, then alone an order of remand can be passed and once the Trial Court adjudicated the issues on merits and the documents were appreciated, then certain non-settled defects in the appreciation or omission or commission can be filled up by the Appellate Court instead of remanding the matter back to the Trial Court. In other words, non appreciation of certain documents or not framing certain issues would not be a ground to remand the matter back to the Trial Court and such additional issues can be framed by the Appellate Court itself and if necessary by accepting additional documents or by examining the witnesses, the Appellate Court is empowered to decide the matter finally.

10. Order XLI, Rule 24 enumerates that “Where evidence on record sufficient, Appellate Court may determine case finally-where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the appellate Court may, after resettling the issues, if necessary, finally determine the suit,