The appellate court must discuss the merits of a case before remanding it to the trial court, as per CPC provisions.

JUDGMENT

Anil Kshetarpal, J. (Oral)

With the consent of the learned counsel representing the parties, two connected appeals against the order passed by the First Appellate Court remitting the case back to the trial Court shall stand disposed of by this common order.

2. In order to comprehend the issue involved in the present case, the relevant facts, in brief, are required to be noticed.

3. The appellant-Sh. Parminder Kumar filed a suit for grant of decree of specific performance of the agreement to sell dated 23.03.2005. The suit was contested by defendant No.1, in which he claimed that the agreement to sell dated 23.03.2005, was merely a paper transaction. Previously, an agreement to sell dated 07.11.2003, regarding the same suit land was executed between the plaintiff and defendant No.1 and the agreement dated 23.03.2005, was executed in order to save the stamp duty by reflecting lesser amount of total sale consideration than the actual amount that was spent in the transaction. It was claimed that the agreement to sell dated 07.11.2003 was cancelled vide endorsement dated 24.04.2008, and therefore, the suit for specific performance of the agreement to sell dated 23.03.2005, was not maintainable. Defendant No.2 claimed that she is a bonafide purchaser of the property.

4. The trial Court framed the following issues for adjudication after examining the pleadings filed by the respective parties:-

"1. Whether the plaintiff is entitled to decree for specific performance of contract dated 23.3.2005? OPP

2. Whether the present suit is not maintainable in the present form? OPD

3. Whether the plaintiff has not come to the Court with clean hands and suppressed the material facts? OPD

4. Whether the suit property is Benami and the suit is filed on asking of father of plaintiff Balram? OPD

5. Whether the suit is false and frivolous and the same is liable to be dismissed? OPD

6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD

7. Whether the suit is time barred? OPD

8. Whether the defendant No.2 is bonafide purchaser? OPD

9. Relief."

5. The trial Court vide judgment and decree dated 24.10.2017, decreed the suit. The objection of defendant No.1 with regard to the endorsement of cancellation executed in the year 2008, was specifically examined by the Court before deciding the suit.

6. Defendant No.1 filed the first appeal. The same has been allowed after framing comprehensive issue, which reads as under:-

"i) Whether plaintiff is entitled to decree for specific performance of contract on basis of agreement to sale dated 23.03.2005 as executed by defendant No.1 Ram Avtar Gupta in favour of plaintiff Parminder Kumar in the presence of witnesses? OPP"

7. In para 15, the First Appellate Court has observed that the document Ex.D-2 was not properly tendered in evidence and the issues have not been framed correctly.

8. With these observations, the Appellate Court chose to remit the matter back to the trial Court. The correctness of the aforesaid order has been challenged in these appeals.

9. It may be clarified that two separate first appeals were filed by the defendant No.1 and 2.

10. This Bench has heard the learned counsel representing the parties at length and with their able assistance perused the paperbook.

11. On the one hand, the learned counsel representing the appellant contends that under Order XLI Rule 25 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC'), the Appellate Court is entitled to frame a new issue and seek report from the trial Court. He submits that in this case, the issue has already been framed and decided by the trial Court. He further submits that under Order XLI Rule 23A of the CPC, the Appellate Court can remit the matter back to the trial Court only after reversing the judgment and decree by discussing the case on merits and when a retrial is considered necessary. He submits that the Appellate Court has neither discussed the case on merits nor set aside the