The Appellate Court should exercise its discretion properly under Order 41, Rule 23-A of the Civil Procedure Code and decide the appeal on its merits instead of remanding the matter for retrial.

ORDER : – Since pleadings are complete and learned counsel for the parties are ready to argue the matter finally, therefore, considering the issue involved in the case, it is heard finally.

2. The instant appeal is arising out of the judgment and decree dated 15-10-2018 passed by the Third Additional District Judge, Jabalpur in First Appeal No. 07-A/2014 whereby, the First Appellate Court after setting aside the judgment of the trial Court, wholesale remitted the matter for retrial.

3. The challenge is basically made on the ground that remanding the case to the trial Court for fresh trial is bad in law and perverse. It is contended by the appellant that the First Appellate Court has failed to see that wholesale remand is permissible in a very exceptional circumstance and such power should be exercised sparingly and it should not be exercised merely because the trial Court in some aspect is wrong and also in circumstance when all evidence has been duly placed before the trial Court and the suit was decided on merits on several issues framed then such remand by the First Appellate Court is absolutely illegal. It is stated by the appellant that the trial Court has framed various issues and on the basis of material adduced by the parties, gave specific findings therein. It is also stated by the appellant that the First Appellate Court has remitted the matter taking note of the evidence which infact could not have been considered as good evidence. It is also contended by the appellant that before the Appellate Court, no such plea was taken by the respondents that the trial Court has not allowed any oral or documentary evidence or excluded any such evidence to be taken on record. In such a circumstance, the wholesale remand setting aside the well reasoned judgment is not permissible. It is also contended by the appellant that the very object of remand is being frustrated as the Appellate Court has given the plaintiff one more opportunity to fill-up the lacunae which they have left at the time of contesting the trial. Accordingly, the appellant has questioned the legality and validity of the judgment and decree passed by the First Appellate Court and claimed that the same be set aside because the First Appellate Court without applying its mind exercised the power of wholesale remand in a very ordinary and casual manner.

4. Per contra, the learned counsel appearing for respondent No. 1 has supported the order passed by the First Appellate Court and has contended that in the present facts and circumstances, there was no other option available with the First Appellate Court but to remit the matter for fresh trial and as such, the impugned judgment and decree does not call for any interference. The appeal being misconceived without any substance and, therefore, deserves to be dismissed.

5. To decide the controversy involved in the appeal certain important facts are required to be appreciated that the plaintiff/respondent No. 1 filed a suit for permanent injunction against defendant No. 2/present appellant claiming that the plaintiff has purchased a plot situated at Mouja Gorakhpur, Patwari Halka No. 24/2, Bandobast No. 605, Khasra Nos. 773/6, 774/6, 775/5 and 776/9 total area admeasuring 3.822 hectares out of which, 25 x 50 = 1250 square feet bearing plot No. 114-A (disputed plot) which has been marked in red in the map and the suit was filed on 6-11-2007. Defendant No. 1 herein was a registered Society bearing registration No. 133/81 (hereinafter referred to as the ‘Society’) and the basic object of the Society was to provide the plots for constructing the house by its members. As per the plaintiff, the defendant No. 1/Society has allotted the disputed plot vide registered sale authority letter dated 30-3-1990 in favour of the plaintiff and also handed over the possession of the same till then the said plot is owned and possessed by the plaintiff without any obstruction. The plaintiff has taken a membership of the Society after depositi