JUDGEMENT

1. This appeal has been preferred by the plaintiff being aggrieved by the order dated 4.3.2021 passed in Civil Appeal No.46/2019 by the IInd Additional District Judge, District Dhar whereby the judgment and decree dated 30.8.2019 passed in Civil Suit No.36-A/2016 by the Ist Civil Judge, Class-I, District Dhar has been set aside and the matter has been remanded back to it with the directions as contained therein.

3. Facts in brief are that the plaintiff instituted an action against defendants for declaration that the sale deeds dated 28.1.2014 and 17.7.2015 executed with respect to the suit land are not binding upon him and for permanent injunction restraining the defendants from interfering with his possession over the suit land and from alienating the same in favour of any third person. The defendants 1 to 3 contested the claim by filing their written statement. The defendants 5 to 7 also contested the claim by filing their separate written statement. Upon framing of issues by the trial Court the parties led oral as well as documentary evidence in support of their respective contentions.

4. Upon conclusion of the trial, by judgment and decree dated 30.8.2019 the plaintiff’s claim was decreed by the trial Court being aggrieved by which defendants 1, 5 to 7 preferred an appeal under section 96 of the CPC before the lower appellate Court. During pendency of the appeal they filed an application under Order 41 rule 27 of the CPC for taking additional documents on record filed along with the application. They also raised an objection as regards issues having been improperly framed by the trial Court submitting that due to the same trial has been vitiated.

5. By the impugned order the appellate Court has allowed the application under Order 41 rule 27 of the CPC filed by defendants 1, 5 to 7 and has taken the documents filed along with the application on record as additional evidence. It has further held that issue No.1 and 3 framed by the trial Court did not arise for determination and has deleted those issues and in their place has framed additional issues. Thereafter setting aside the judgment and decree passed by the trial Court it has remanded the matter back to it to permit the parties to lead evidence in respect of the additional documents taken on record and the newly framed issues and thereafter to decide the matter afresh.

6. Leaned counsel for plaintiff submits that the impugned remand order is wholly unjustified. Merely for the reason that the appellate Court felt it necessary to reframe certain issues, the matter could not have been remanded back solely on that ground. The provisions of Order 41 of the CPC have totally been ignored by the appellate Court. As per Order 41 rule 24 the appellate Court ought to have decided the appeal itself finally on merits instead of directing for remand. Alternately in terms of Order 41 rule 25 the appellate Court could have directed for a limited remand for consideration of newly framed issues. Wholesale remand is wholly unjustified. The procedure as provided under Order 41 rule 28 and 29 pursuant to additional documents being taken on record has also been wholly omitted to be followed. It is hence submitted that the impugned order cannot be sustained.

7. Per contra learned counsel for defendants No.1, 5 to 7 has submitted that the impugned remand order is perfectly justified. The issues which had been framed by the trial Court did not at all arise for consideration which resulted in mistrial. The fresh issues which have been framed by the appellate Court require fresh evidence by both the parties and reconsideration denovo hence it has rightly remanded the matter back to the trial Court for permitting the parties to lead evidence. Since additional documents have been taken on record, defendants 1, 5 to 7 have rightly been afforded opportunity to lead evidence in that regard. Plaintiff has also been extended the liberty to lead evidence hence no prejudice is caused to him. The