Judgment

Mrs. Alka Sarin, J.

The present appeal has been preferred by the plaintiff-appellant aggrieved by the order dated 11.01.2023 passed by the First Appellate Court, by virtue of which the judgment and decree passed by the Trial Court has been set aside and the matter has been remitted to the Trial Court with a direction to pass a judgment afresh after giving categoric findings on the additional issues framed by the First Appellate Court.

2. Learned counsel appearing on behalf of the plaintiff-appellant has contended that though the First Appellate Court has the power to remand the case, however, the same is to be exercised only in a rare situation. Learned counsel for the plaintiff-appellant would further contend that after framing of the additional issues the First Appellate Court could have itself recorded the evidence and decide the case on merits. It is further the contention of learned counsel for the plaintiff-appellant that detailed findings had been returned by the Trial Court and without reversing the findings returned by the Trial Court the judgment and decree passed by the Trial Court has simply been set aside and the matter has been remanded to the Trial Court for a decision afresh. In support of his argument, learned counsel for the plaintiff-appellant has relied upon judgments of the Hon’ble Supreme Court in the cases of Zarif Ahmad (D) through LRs and Another vs. Mohd. Farooq, 2015 (1) RCR (Civil) 794 and Smt. Bachahan Devi & Anr. vs. Nagar Nigam, Gorakhpur & Anr., 2008 (2) RCR (Civil) 367.

3. Per contra learned counsel for the caveator-defendant-respondent has contended that since the issue whether the jurisdiction of the civil court was barred was not decided, hence, the matter has rightly been remanded by the First Appellate Court. According to counsel, there is no error or illegality in the impugned order.

4. I have heard learned counsel for the parties.

5. In the present case vide a detailed judgment the Trial Court had decreed the suit of the plaintiff-appellant vide judgment and decree dated 09.12.2019. Aggrieved by the said judgment and decree an appeal was preferred by the defendant-respondent. Vide the impugned order, the First Appellate Court has framed additional issues and without so much as even adverting to the findings recorded by the Trial Court, has set aside the judgment passed by the Trial Court and remanded the matter back to decide afresh. Hon’ble Supreme Court in the case Zarif Ahmad (supra) in para 13 has held as under :

“13. No doubt, Section 107 of CPC empowers the appellate court to remand a case, but it simultaneously empowers the appellate court to take additional evidence or to require such evidence to be taken. Rule 24 Order 41 C.P.C provides that where evidence on record is sufficient, appellate court may determine the case finally. It is not a healthy practice to remand a case to trial court unless it is necessary to do so as it makes the parties to wait for the final decision of a case for the period which is avoidable. Only in rare situations, a case should be remanded e.g. when the trial court has disposed of a suit on a preliminary issue without recording evidence and giving its decision on the rest of the issues, but it is not so in the present case.”

6. In the case of the Bachahan Devi (supra), it has been held as under :

“9. Under Order 41 Rule 25, if it appears to the Appellate Court that any fact essential for the decision in the suit was to be determined, it could frame an issue on the point and refer the same for trial, to the Court from whose decree the appeal is preferred and in such case, shall direct such court to take additional evidence required. The order of remand should no