JUDGMENT :

Anil Kshetarpal, J.

Legal representatives of defendant No.1 assail the correctness of the First Appellate Court's order remitting the matter back to the trial Court for fresh decision.

2. The plaintiffs filed a suit for declaration and joint possession claiming that after the death of Sh. Saffa Singh @ Santa Singh his sons became the owner of his share. The plaintiffs' suit was dismissed by the trial Court. First appeal was filed by the plaintiffs. During the pendency of the appeal, it was noticed that proper opportunity to cross-examine PW-1 and PW-2, namely, Sh. Nirmal Singh and Sh. Lachman Singh has not been granted to the defendants. The First Appellate Court made the following observations:-

"9. Shri B.S. Maan, learned counsel for the appellant contended that the learned trial court has observed in the judgment that Nirmal Singh and Lachhman Singh have been examined as PW-1 and PW-2 respectively but they have not come into the witness box to face cross-examination. The learned counsel for the appellants contended that the said observations of the learned trial court are against and fact as opportunities were given to the defendants to cross-examine the said witnesses and their cross-examination was treated as Nil. Therefore, he argued that the statements of Nirmal Singh and Lachhman Singh Pws be read against the defendants. On the other hand, Shri G.P. Singh, Advocate counsel for the contesting respondent has contended that the defendants were not afforded sufficient opportunity to cross-examine the witnesses of the plaintiff, therefore, they may be allowed to crossexamination of the above mentioned witnesses. The said request of the learned of the learned counsel for the contesting respondents is not opposed by Shri B.S. Maan, Advocate for the appellants at the bar. Therefore, in view of the circumstances narrated above, the present appeal is allowed. The case is remanded back to the learned trial court and the learned trial court is directed to call Nirmal Singh and Lachhman Singh witnesses again and to give opportunity to the defendants to cross-examine the said witnesses. The plaintiffs may also be allowed to lead fresh evidence. Both the parties through their counsel are directed to appear before the learned trial court on 20.10.2018 at 10.00 AM Sharp. The trial court record be remitted alongwith copy of this judgment and the appeal file be consigned to Record Room Barnala."

3. The scope and ambit of Order 41 Rule 23-A of the Code of Civil Procedure, 1908(CPC), permitting the Appellate Court to remand the case back to the Lower Court has been explained by the Hon'ble Supreme Court in 'P.Purushottam Reddy and Another v. Pratap Steels Ltd'. (2002) 2 SCC 686, in the following manner:-

'10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order XLI of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a court of appeal in Order XLI of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand in as much as the subordinate court can try only such issues as are referred to it for trial and having done so the evidence recorded together with findings and reasons therefore of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under