A remand was ordered by the first appellate court without considering the issues involved in the suit on its merits based on the evidence adduced and the legal position settled. This court has laid down the legal position in Gopalakrishnan and Another v. Ponnappan and others [2021 (5) KHC 548]. The Apex Court in Syeda Rahimunnisa v. Malan Bi (Dead) By L.Rs and Another [2016 KHC 6656] in paragraph 35 laid down the legal position regarding the application of Order XLI Rule 23, 23A and 25 C.P.C. A Division Bench of the Apex Court laid down the very same legal position in Balaji Singh J v. Diwakar Cole and Others [2017 KHC 6344 : AIR 2017 SC 2402]. Further, the very same legal position was reiterated by the Apex Court in Prakasan A.A. v. Anupama and Others [2017 KHC 6934] and also in a recent decision in Malluru Mallappa (D) Thr. Lrs. v. Kuruvathappa and Others [2020 (1) KHC 977 : AIR 2020 SC 925 : 2020 (2) KLT 64]. But the first appellate court without going into the settled legal position passed an order of remand for the purpose of examination of propounder of the Will. The parties have proceeded with the suit and adduced evidence fully knowing the dispute involved. Then, the first appellate court has to adjudicate the dispute based on the evidence adduced and the legal position applicable. A remand of the matter for the examination of the propounder without showing a specific ground for it cannot be sustained. Further, it is not at all necessary that the propounder should mount on the box invariably in all cases. He can discharge his burden by examination of witnesses and production of documents. The lacuna in the evidence adduced hardly a ground for a remand. The order of the first appellate court hence cannot be sustained, set aside. The first appellate court shall dispose of the appeal on merits within three months, for which the parties shall appear on

04/02/2022.

The appeal is allowed accordingly. No cost.