ORDER

1. Present miscellaneous appeal has been filed under Order 43 rule 1(u) of CPC against judgment and decree dated 1.8.2011 passed in RCA No.60-A/06, whereby, judgment and decree passed by trial Court on 24.12.2005 in RCS No.8-A/2004 has been set aside and case has been remanded back to trial Court on the grounds mentioned in para-11 of impugned judgment.

2. Learned counsel for appellants, after referring to para-9, 10 and 11 of impugned judgment, submits that First Appellate Court has wrongly set aside judgment and decree passed by trial Court and has wrongly remanded back case to trial Court for recording of evidence etc. It is also urged that in 1998, original plaintiff Balkishan expired. At the time of death of Balkishan, evidence of plaintiff was over and case was fixed for defendant evidence. After death of Balkishan, plaintiff Shivkant was brought on record on the basis of Will executed by Balkishan and plaintiff Bhagwandas was brought on record on the ground that he is adopted son of Balkishan. It is also urged that after Shivkant and Bhagwandas were added as plaintiffs, they never filed any application for affording an opportunity for adducing evidence. On above grounds, it is urged that First Appellate Court has wrongly set aside trial Court’s judgment and decree and remitted case back to trial Court for recording of evidence etc. Hence, appeal be allowed and impugned judgment and decree be set aside.

3. I have heard learned counsel for the appellants and perused the record of the case.

PRINCIPLES/GOVERNING REMAND OF CASE:-

4. Before analyzing and discussing the facts of the case, it would be appropriate to refer relevant provisions of law and pronouncements having bearing on issue involved in the case.

5. A co-ordinate Bench of this Court in Vipin Kumar and Others v. Sarojani reported in (2013) 1 MP LJ 480 has issued certain guidelines with respect to remand of case by First Appellate Court in para-17 which are as under:-

“17. It is made clear here that for future while directing remand by the lower Appellate Court certain guidelines are required to be observed while passing judgment and order directing remand. It is directed that the lower Appellate Courts in the State shall observed the contingencies in which remand is permissible otherwise the appeals be decided on merit. The contingencies wherein remand can be directed is observed as thus:

(1) If the suit has been decided on a preliminary issue and the decree is reversed by Appellate Court then while passing the order of remand the Appellate Court may direct to try the issue or issues after taking the evidence already on record or after the remand, if any, on restoring the suit to its original number.

(2)If an appeal is preferred against the judgment and decree passed by the trial Court other then the preliminary issue and Appellate Court reversed such finding in appeal and further found that re-trial is necessary then by recording such finding the power as specified in clause (1) may be exercised by the Court directing wholesale remand.

(3) If the Appellate Court found from the decree against which an appeal is preferred the trial Court has omitted to frame or try any issue or to determine the question of fact which appears essential to right decision of the suit on merit, then the Appellate Court may frame issues and refer the same for trial to the Court from whose decree the appeal is preferred directing to take additional evidence if required. The Appellate Court shall further direct that after trying the said issue the evidence be returned to it with a finding and reasons therefor. In such contingencies the time to return back the evidence and the finding ought to be fixed by the appellate Court. Thereafter the Appellate Court after inviting objections may determine the appeal on merit.

(4) On production of the additional evidence and after taking them on record, if the Appellate Court is satisfied to take some witness to prove the document then the