1. This Civil Miscellaneous Appeal is filed under Order XLIII Rule 1 of the Code of Civil Procedure (hereinafter in short referred to as "Code" for the purpose of convenience) as against an order of remand made in A.S.No.4/2006 on the file of Senior Civil Judge, Parchur.

2. The appellant herein is the plaintiff in O.S.No.203/2003 on the file of Principal Junior Civil Judge, Parchur and the said suit was instituted for recovery of money. The Court of first instance in the light of the respective pleadings of the parties, having settled the issues, recorded the evidence of P.W.1, D.Ws. 1 to 3, marked Ex.A.1, Ex.A.2 and Ex.X.1 to Ex.X.7, recorded certain findings and ultimately decreed the suit. Aggrieved by the same, the defendant in the said suit carried the matter by way of appeal A.S.No.4/2006 on the file of Senior Civil Judge, Parchur, and the appellate Court made an order of remand having observed that proper issues were not framed and having framed a specific issue "whether the alleged settled agreement pleaded by the defendant is true, valid and binding on the plaintiff" Aggrieved by the said order of remand made by the appellate Court, the learned Senior Civil Judge, Parchur, in A.S.No.4/2006, the present Civil Miscellaneous Appeal had been preferred.

3. Contentions of Sri Adinarayana:- Sri Adinarayana, the learned Counsel representing appellant-plaintiff pointed out that the appellate Court was unable to understand the scope and ambit of Order XLI Rules 23 and 25 of the Code. The Counsel also pointed out that though several decisions were cited, the learned Judge observed that those decisions were delivered under Order XLI Rule 23 of the Code and hence they are not applicable and this view expressed by the appellate Court is totally erroneous. The learned Counsel also had taken this Court through the issues which had been settled by the Court of first instance and the nature of evidence which had been let in by the respective parties and would maintain that even if it is to be taken that issue No.1 was not properly framed, both parties were conscious of the respective stands taken by the parties and had let in their evidence and in view of the same, no prejudice is caused to the respondent in the present C.M.A. - defendant in the suit. The learned Counsel also pointed out that an order was made in I.A.No.622/2005 in O.S.No.203/2003 on the file of Principal Junior Civil Judge, Parchur, and the matter was carried by way of C.R.P.No.5784/2005 and this Court by order dt.4-1-2006 dismissed the same observing that the members of the committee in the village were already examined as D.W.2 and D.W.3 and in this view of the matter, the filing of the present petition is nothing but to drag on the matter and hence the Court below had rightly dismissed the application. The Counsel also pointed out that here is a case where an order of remand was made without discussing or properly appreciating the evidence available on record and this approach also is erroneous. The learned Counsel placed reliance on certain decisions.

4. Contentions of Sri Subba Rao Korrapati:- Sri Subba Rao Korrapati, the learned Counsel representing respondent-defendant pointed out that in the light of the respective pleadings of the parties, the very first issue which had been settled by the Court of first instance being not correct issue, the appellate Court arrived at the correct conclusion by framing proper issue and inasmuch as the appellate Court also felt that some further evidence may be necessary, an order of remand was made. The Counsel also pointed out to the reference made in relation to the settlement before the Lok Adalat held on 7-6-2003. The Counsel also would submit that when the appellate Court felt that it would be just and convenient to make an order of remand in the facts and circumstances of the case though a Civil Miscellaneous Appeal as such is filed since this is to be treated just as akin to a Second Appeal unless a substantial question of law is made out or a serious legal infirmity is pointed out normally against an order of remand, this Court may not justified in disturbing such an order. The Counsel also pointed out to the relevant provisions of the Code.

5. Heard the Counsel.

6. The Civil Miscellaneous Appeal was filed as against an order of remand made in A.S.No.4/2006 on the file of Senior Civil Judge, Parchur, by order dt.27-11-2006. It is needless to say that Civil Miscellaneous Appeal filed under Order XLIII Rule 1 of the Code would stand on a different footing when compared to a Second Appeal filed under Section 100 of the Code. Though certain submissions had been made in this regard, this Court need not further dwell upon this question since a Civil Miscellaneous Appeal as against an order of remand stands on a different footing when compared to a Second Appeal preferred under Section 100 of the Code.

7. The appellant herein is the plaintiff in O.S.No.203/2003 and respondent in A.S.No.4/2006. The appellant herein as plaintiff instituted the suit for recovery of amount and before the Court of first instance the following issues were settled:-

1) Whether the suit pronote is correct

2) Whether the plaintiff is entitled for recovery of the pronote amount

3) To what relief

8. On behalf of the plaintiff P.W.1 was examined and Ex.A.1 and Ex.A.2 were marked. On behalf of the defendant D.Ws.1 to 3 were examined. Exs.X.1 to X.7 were marked.

9. On a careful reading of the evidence available on record and also the findings recorded by the Court of first instance, it is clear that both the parties had proceeded with the trial having understood their respective stands clearly and in the light of the same, the mere framing of issue No.1 in a particular form had not caused any prejudice to the respondent-defendant.

10. Be that as it may, being aggrieved of the Decree and Judgment made by the Court of first instance in O.S.No.203/2003, the defendant preferred A.S.No.4/2006 and the appellate Court at para 10 framed the following points for consideration:-

1) Whether the lower Court omitted to settle any relevant issue to decide the truth of the defence of the defendant

2) Whether there are any grounds to set aside, modify the Decree and Judgment dt.15-4-2006 passed in O.S.No.203/2003 on the file of Court of Principal Junior Civil Judge, Parchur

3) To what relief

11. Specific issue which had been framed by the appellate Court under Order XLI Rule 25 of the Code is as hereunder:-

"Whether the alleged settled agreement pleaded by the defendant is true, valid and binding on the plaintiff"

12. Order XLI Rule 23 of the Code dealing with remand of case by Appellate Court reads as hereunder:-

"Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand."

13. Order XLI Rule 25 of the Code dealing with where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from reads as hereunder:-

"Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears, to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore within such time as may be fixed by the Appellate Court or extended by it from time to time."

It is needless to say that from the language of Order XLI Rule 23 and Rule 25 of the Code these operate in their respective spheres.

14. Order XLI Rule 23-A of the Code dealing with remand in other cases reads as hereunder:-

"Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.

15. Strong reliance was placed on Order XLI Rule 24 of the Code which deals with where evidence on record sufficient, Appellate Court may determine case finally and this provision reads as hereunder:-

"Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."

16. In VADLA VEERABHADRAPPA vs. CHALLA VENKATAPPA (1961 ALT 164 [LQ/TelHC/1960/257] ) it was observed as hereunder:-

"An appellate Court could remand a suit for fresh disposal to the Court of first instance only in the circumstances laid down in order 41 Rule 23 C.P.C. and in no other. A remand ought not to be ordered as a matter of course, or routine, or for statistical purposes. Inherent jurisdiction cannot be invoked for ordering a remand as the statute contains an express provision, namely Order 41 Rule 23 C.P.C., and where there is an express and specific provision in regard to any matter, inherent jurisdiction must be deemed to have been impliedly excluded in regard to that matter. If the appellate Court feels that any issue or issues had been left undetermined by the trial Court, it may frame such issue or issues and remit the same to the trial Court for a finding, keeping the appeal pending on its file, and on receipt of the finding from the trial Court, proceed to hear and dispose of the appeal in the light of the findings and the evidence, if any, record in support thereof and of the evidence already on record, following the procedure indicated in Rules 25 and 26 of Order 41 C.P.C. There can be no question of ordering a remand in such a case. If the appellate Court decides to receive additional evidence in appeal under Order 41 Rule 27 C.P.C., it may itself record the additional evidence or direct the trial Court or any subordinate Court to record the same and send up the evidence so recorded, to the appellate Court, which must then proceed to hear and dispose of the appeal in the light of the fresh evidence and the evidence already on record in accordance with Rules 28 to 30 of Order 41 C.P.C. The appeal continues to remain on the file of the appellate Court till the additional evidence is received by it and the appeal head and disposed of. There can be no question of ordering a remand in this situation also."

17. In P. APPADU ALIAS BODDEYYA vs. POODI RAMU NAIDU AND OTHERS (1955 ALT 695) it was held that it is quite true that under the Madras Amendment of Order 41 Rule 23, the discretion of the Court to order a remand is unfettered, but that discretion of the Court is not arbitrary. An appellate Court should not lightly order a retrial in any case in which this can possibly be avoided. A remand should not be made in a case, which can properly be dealt with under Rule 25 nor can a remand be ordered to allow a party to fill up the lacuna in his case. An order of remand made by an appellate Court, without coming to the conclusion that the decision of the trial Court is wrong and that it is necessary to set aside or reverse the decision of the trial Court, is illegal.

18. Reliance also was placed on K. SRIRAMULU vs. K.V. RADHAKRISHNAMURTHY (1985 (2) ALT 534) wherein it was held that the order of remand made without coming to a conclusion that the decision of a trial Court is wrong and that it is necessary to reverse or set aside the decree, is illegal. The appellate Court has to consider the evidence on record and then to arrive at a conclusion whether the finding recorded by the trial Court cannot be supported on evidence on Ordinance. Then the further question to be considered is whether it is a case for remand. In that behalf, conduct of the parties has to be considered viz., whether they have sufficient opportunity to adduce evidence at the trial but not brought on record, if not, whether it would be a case to afford such an opportunity.

19. Strong reliance was placed on the decision of the Apex Court in P. PURUSHOTTAM REDDY vs. M/S. PRATAP STEELS LTD. (AIR 2002 Supreme Court 771) wherein at para 10 the Apex Court observed as hereunder:-

"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 41 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 41 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 inasmuch 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 Section 151 of the CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 of the CPC. In cases where additional evidence is required to be taken in the event at any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate Court itself or by directing any Court subordinate to the appellate Court to receive such evidence and send it to the appellate Court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate Court hearing an appeal against a decree if (i) the trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate Court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra v. Sushila (AIR 1965 S.C., 365), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the Court may now exercise the power of remand dehors the Rules 23 and 23A. To wit, the superior Court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20, Rule 3 or Order 11, Rule 31 of the CPC and hence it is no judgment in the eye of law it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided."

20. As can be seen from the findings recorded, it is not as though the evidence available on record is insufficient. As against the evidence of P.W.1, apart from D.W.1, D.Ws.2 and 3 also had been examined. No doubt, the evidence of D.W.2 and D.W.3 had been disbelieved by the Court of first instance. The appellate Court could have appreciated this evidence and could have disposed of the matter. Even in a case where the appellate Court otherwise was satisfied that one of the issues had not been framed by the Court of first instance, this could have been done in the light of the language of Order XLI Rule 24 of the Code.

21. As far as the order in C.R.P.No.5784/2005 is concerned, this Court made the said order when C.R.P. was filed by the present respondent-defendant being aggrieved of an order made in I.A.No.622/2005 in O.S.No.203/2003 on the file of Principal Junior Civil Judge, Parchur. The said application was filed praying for issuance of witness summons to the proposed witness for giving evidence. The said application was dismissed and aggrieved by the same the matter was carried by way of C.R.P. specified above and the C.R.P. also was dismissed. It is no doubt true that the said order was made when an order was made by the Court of first instance and the same was carried by way of C.R.P. May be that the appellate Court seized of the matter if otherwise satisfied that further opportunity to be given in this regard, may exercise such discretion. But however, in the light of the oral and documentary evidence available on record and also in the light of the nature of the findings recorded by the appellate Court, this Court is satisfied that the order of remand made by the appellate Court is neither warranted nor justified in the peculiar facts and circumstances of the case. Accordingly, the order of remand is hereby set aside.

22. However, in the light of certain additional facts pointed out, the appellate Court, if otherwise satisfied, is at liberty to permit both the parties to let in additional evidence and record appropriate findings.

23. With the aforesaid liberty and observation, the Civil Miscellaneous Appeal is hereby allowed. No order as to costs.