ORDER :

This appeal is against an order of open remand passed by the learned 3rd Additional District Judge, Puri on 05.08.2014 in R.F.A. No. 29 of 2011 which arises out of T.S. No. 622/405 of 2001/1995 in the Court of Civil Judge (Junior Division), Puri.

2. The appellants herein are the plaintiffs and the Respondent is the defendant in the suit before the Trial Court.

3. The suit was decreed on contest declaring the plaintiffs right, title and interest over the suit land and confirming their possession and permanently injuncting the defendant from interfering with the plaintiffs possession. Being aggrieved, the defendant preferred First Appeal challenging the judgment and decree passed by the learned Trial Court. Along with the appeal memo the defendant made a prayer under Order 41,- Rule 27, C.P.C. to admit some documents as additional evidence. Leaned appellate Court having heard the parties and making detail analysis as to how the application for additional evidence ought to be allowed passed the impugned order observing that rival claim of title in the suit land advanced by the parties can be reasonably answered and the lis can be properly adjudicated on assessment of the evidence on record along with the additional evidence sought to be adduced by the defendant. It was further observed that an open remand was necessary for fresh disposal of the suit in accordance with law. With such observation, the learned appellate Court set aside the judgment and decree passed by the Trial Court and remanded the case for fresh disposal.

4. On behalf of the appellants it is contended that such an open remand is not contemplated under Order 41 of C.P.C. and, therefore, the impugned order is not sustainable in the eye of law. It is submitted that the learned lower appellate Court must have made endeavour to dispose of the appeal on merit despite of its observation that in the interest of justice the additional evidence ought to be admitted. An open remand is contemplated under Order 41, Rule 23-A, C.P.C. Such, order of remand can be passed only when the decree is reversed in appeal and are-trial is considered necessary. The appellate Court cannot make order of remand without coming to a conclusion that the decision of the Trial, Court is wrong and that it is necessary to reverse or set aside the judgment and decree. Before going to pass an order under Order 41, Rule 23-A, C.P.C. the appellate Court has to consider the evidence on record and then arrive at a conclusion whether the finding recorded by the trial Court cannot be supported by evidence on record.

On perusal of the impugned order it is revealed that learned appellate Court has set aside the judgment and decree of the trial Court but not on merit. It has not dealt with the findings of the learned trial Court to arrive at a conclusion that the trial Court's decision was wrong. Learned appellate Court has dealt with only one point, i.e., whether for just decision of the case the additional evidence sought to be produced by the defendant should be admitted into evidence or not. After recording its finding that the appellants ought to be permitted to adduce the additional evidence the learned appellate Court has set aside the judgment and decree of the trial Court and remanded the matter for fresh disposal giving parties due opportunity to adduce evidence. Such an order is not in accordance with Rule 23-A, Order 41, C.P.C.

5. If the learned lower appellate Court was of the considered view that production of additional evidence in appellate Court was necessary, then it could have allowed such evidence/document to be produced and, thereafter, it should have dealt with the matter in accordance with Order 41, Rule 28, C.P.C. according to which the appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and send back the additional evidence so taken to the appellate Court. Had the appellat