Smti. K. Meena Kumari v. Smti. Koyye Mahanlyamma

return in September 2011 along with his wife. The defendant also approached the revenue authorities for conducting demarcation of the subject land. In the meantime, the defendant came to learn from reliable sources that the plaintiff in connivance with her father filed the instant suit on the strength of alleged Power of Attorney and an agreement for sale. The father of the plaintiff representing himself as the power of attorney holder of the defendant committed mischief in connivance with the plaintiff by submitting a reply in response to a legal notice of the plaintiff stating that he is ready to register the deed of sale in favour of the plaintiff. That apart the father of the plaintiff also submitted an application under order XII Rule 6 of the Code supported by an affidavit with a prayer for a decree on admission. Fact remains that no such Power of Attorney dated 4th December 1990 was executed by K. Satyam in favour of father of the plaintiff namely Shri K. Sunder Rao and the document particularly the agreement for sale dated 14th December 1990 is forged and fabricated one which was never executed by defendant. Shri K. Sunder Rao has no right, title or interest to remain in possession of the suit property since the father 5 of the plaintiff was permitted to occupy the structure during the temporary absence of the defendant for his medical treatment. The defendant denied the construction of a single storied dwelling house by the plaintiff over the suit property. The defendant prayed for following orders namely (i) a decree be passed declaring that the defendant never executed any deed of agreement dated 14th December 1990 in favour of the plaintiff and same is false and fabricated document declaring the same as null and void; (ii) a decree be passed declaring that the defendant never executed any General Power of Attorney on 4th December 1990 in favour of K. Sunder Rao authorising him to act on his behalf and the same is false and fabricated document declaring the same as null and void ; (iii) a decree declaring that the father of the plaintiff was put in permissive possession of the suit property during temporary absence of the defendant and (iv) a decree for eviction of plaintiff or any of her family members from plot No.47 i.e. the suit property.

#4. Upon considering the respective pleadings of the parties, the learned trial court framed and recast the following issues. (i) Whether the suit is maintainable in its present form and law or not? (ii) Whether the suit is barred by law of limitation or not? (iii) Whether the defendant executed any agreement for sale in favour of the plaintiff or not? (iv) Whether the agreement for sale dated 14th December 1990 is binding upon the defendant or not? (v) Whether the plaintiff is in permissive possession over the suit property or not? (vi) Whether the defendant authorised K.Sunder Rao by way of power of attorney to sue or be sued or not? (vii) Whether the plaintiff is liable to vacate the suit schedule property or not? (viii) Whether the plaintiff is entitled to get the decree in respect of relief of specific performance of contract of sale or not? (ix) Whether the plaintiff is entitled to get the decree as prayed for or not? (x) To what other relief or reliefs, the plaintiff is entitled to get? (xi) Whether the defendant to get any decree in respect of counter claim or not? 6

#5. The learned trial court decided issues no. (i) to (vi), (viii) to (x) in favour of the plaintiff and did not dispose of issue no. (vii) and (xi), and decreed the suit for specific performance of contract in favour of the plaintiff on 22nd February 2018 as follows: is decreed against the instant suit be and the same “that the defendant/K.Satyam. The plaintiff is directed to deposit the remaining amount of sale consideration of Rs.35,000/- (Rupees thirty-five thousand) only in favour of the defendant; if the defendant denied to accept the same then the plaintiff is at liberty to deposit the same before the court; within three months from the date of passing of this judgement and order; defendant/K.Satyam is hereby directed to be execute and register the deed of sale in favour of the plaintiff in respect of the suit schedule property within three months from the date of passing of this judgement and order; defendant is at liberty to withdraw the amount from the court, if the defendant executed and register the deed of sale in favour of the plaintiff/K.Meena Kumari in that event plaintiff is at liberty to put this order into execution.”

#6. Being aggrieved by and dissatisfied with the impugned judgment and decree of the learned trial court the defendant preferred two appeals being Other Appeal 8 of 2018 and 9 of 2018 respectively. The appeal being no. 8 of 2018 was preferred against the judgment and decree passed for specific performance of contract in favour of the plaintiff and appeal being no.9 of 2018 was preferred for allowing the prayer of the defendant for counter- claim. Both the appeals were disposed of by separate judgments on 29th February 2024 with similar directions. The First Appellate Court ordered as follows. “ Be that as it may, considering the totality of the facts, circumstances and material on record, the impugned judgement and decree dated 22.02.2018 passed by learned Civil Judge (Junior Division-I), Port Blair in other suit 28/2011 are set aside and the matter is remanded back under order XLI Rule 23(A) of CPC for a retrial on open remand for further evidence by the parties in respect of the power of attorney and agreement for sale dated 14.12.1990, thereby, giving liberty to the parties to adduce further evidence on the issues and the two additional issues i.e “ Whether the transaction in this case relied upon by the plaintiff on the basis of power of attorney and agreement for sale dated 14.12.1990 is a sham transaction? And “Whether any fraud has been played upon the defendant?’. The parties be given an opportunity 7 to contest the suit, as also the Ld. Trial Court to appreciate the evidence by the parties for ascertaining the nature of alleged possession over the suit schedule property and in that eventuality, it is deemed appropriate that the instant case be remanded back before the Ld. Trial Court for adjudication afresh and thereafter hearing the parties and pass a reasoned and speaking judgement and decree on the issues framed and additional issues by the Ld. Trial Court. The impugned judgement and decree dated 22.02.2018 passed by the Ld.Civil Judge (Junior Division-I), Port Blair in Other Suit no. 28 of 2011 Titled Meena Kumari Vs K.Stayam is found to have been passed without considering the law, facts, pleadings, evidence on record and as such the same is hereby set aside with a direction for open remand of the suit and counter claim. Hence, it is Ordered That the instant other appeal being no.08 of 2011, Tilted Smt Koyye Mahanlyamma, W/o Late K.Satyam, (through power of attorney holder) Smt Mani Kumari, W/o Shri Nadhu Vs Meena Kumari is allowed in part on contest but without any order as to cost. Resultantly, the impugned judgement and decree dated 22.02.2018 passed by the Ld.Civil Judge (Junior Division-I), Port Blair in Other Suit no. 28 of 2011 Titled Meena Kumari Vs K.Stayam is said aside with an open remand back of the other suit for fresh consideration. Accordingly, the cases remanded back to Ld. Trial Court for fresh consideration before the Ld. Trial Court for adjudication afresh and thereafter hearing the parties and pass a reasoned and speaking judgement and decree on the issues framed and additional issues by the Ld. Trial Court. The Ld. Trial Court to decide the case upon remand without being influenced in any manner whatsoever by any observation made in this judgement as the record of the trial court has been scrutinised for the limited purpose of deciding the instant appeal in view of the open remand of the case. Since the instant proceeding was filed before the Ld. Trial Court way back on 27.06.2011 and it was decided on 28.02.2018 and the instant appeal was filed in the year 2018. Hence, the parties are litigating since last more than 13 years, thus, the matter is required to be decided by Ld. Trial Court at the earliest and for this purpose, I deem it appropriate to request the Ld. Trial Court to decide the instant suit on open remand at the earliest without granting any unnecessary adjournment to any of the parties.”

#7. The aforesaid judgment and decree of the First Appellate Court passed in separate appeals have been challenged by way of two separate appeals before this court which have been heard analogously on the following substantial questions of law.

#8. In FMAT 2 of 2024 the substantial questions are reproduced hereunder. 8 (a) Whether the learned First Appellate Court was justified in passing the impugned judgment/decree reversing the judgment and decree of the learned Trial Court by remanding the suit for de novo hearing under Order XLI Rule 23A of the Code of Civil Procedure, 1908 upon framing of two issues namely: (i) Whether the transaction in this case relied upon by the plaintiff on the basis of Power of Attorney and agreement for sale dated 14thDecember, 1990 is a sham transaction; and (ii) Whether any fraud has been played upon the defendant without and in absence of any specific defense raised in written statement by the defendant taking such plea before the learned Trial Court. (b) Whether the learned First Appellate Court erred in law by reversing the judgment and decree of the learned Trial Court by holding that in order to prove agreement for sale Exhibit 2, there is a non-compliance of Section 68 of the Indian Evidence Act. (c) Whether the learned First Appellate Court is justified in reversing the judgment and decree of the learned Trial Court based on irrelevant adjudication as regards the execution of the Deed of Power of Attorney by ignoring the relevant consideration about the factum of agreement for sale dated 14thDecember, 1990 having been duly proved in accordance with law during the course of the hearing of the suit by the Plaintiff. (d) Whether the learned First Appellate Court was justified in reversing the judgment and decree of the learned Trial Court by holding that the Plaintiff’s suit seeking specific performance of 9 contract was not instituted based on pre-suit notice and thereby held that the suit to be not maintainable and is having no cause of action. (e) Whether the First Appellate Court was justified in exercising the power under Order XLI Rule 23A of the Code of Civil Procedure, 1908 without there being any ground urged and raised by the respondents/defendant in such appeal about the requirement of reception of additional evidence under Order XLI Rule 27 of the Code of Civil Procedure, 1908. (f) Whether the learned First Appellate Court was justified in reversing the judgment and decree of the learned Trial Court without deciding the appeal on its merit based on available material on record of the learned Trial Court in ignorance of the settled proposition of law as laid down that the power to remand by Appellate Court under the provisions of Order XLI Rule 23 and Rule 23A of the Code of Civil Procedure, 1908 has to be exercised sparingly subject to fulfilment of condition as laid down under Order XLI Rule 24 and 25 of the Code of Civil Procedure,

#9. In FMAT 3 of 2024 the substantial questions of law are as follows: (a) Whether the First Appellate Court erred in law by reversing the judgment and decree of learned Trial Court in failing to appreciate that even without filing a written statement as against the counter claim of the defendant, which is not maintainable in view of Order VIII Rule 6 C of the Code of Civil Procedure, 1908, 10 the plaintiff could succeed in proving the plaint case based on cogent and convincing evidence adduced before the learned Court below as to the averments of the plaint. (b) Whether the learned First Appellate Court is justified in reversing the judgment and decree of the learned Trial Court without the averment of counter claim having been proved by the defendant about that the possession of plaintiff over the suit land as permissive in character. (c) Whether the First Appellate Court erred in law reversing the judgment and decree of the learned Trial Court dismissing the counter claim of defendant for non-compliance of provision of Order VI Rule 4 of the Code of Civil Procedure, 1908 as regards the absence of plea of fraud committed upon the defendant with particulars and details in his pleadings under Order VIII Rule 6A of the Code of Civil Procedure, 1908 on the basis whereof decree of eviction of plaintiff has been sought. (d) Whether the First Appellate Court erred in law reversing the judgment and decree of learned Trial Court in complete transgression of law that the issue as raised in the counter claim by the defendant seeking eviction of plaintiff from the suit land based on alleged permission possession could be effectively adjudicated in an independent suit and not by way of counter claim as per Order VIII Rule 6C of the Code of Civil Procedure,

#1908. 11 (I) SUBSTANTIAL QUESTIONS OF LAW Nos. (b) and (c) in FMAT 2 of 2024 (b) Whether the learned First Appellate Court erred in law by reversing the judgment and decree of the learned Trial Court by holding that in order to prove agreement for sale Exhibit 2, there is a non-compliance of Section 68 of the Indian Evidence Act? (c) Whether the learned First Appellate Court is justified in reversing the judgment and decree of the learned Trial Court based on irrelevant adjudication as regards the execution of the Deed of Power of Attorney by ignoring the relevant consideration about the factum of agreement for sale dated 14th December, 1990 having been duly proved in accordance with law during the course of the hearing of the suit by the Plaintiff?

#10. Both the aforesaid questions being inter-related are taken up together.

10.1. Mr. K.M.B Jayapal, learned advocate for the appellant-plaintiff submitted that the finding of the First Appellate Court that the agreement for sale has not been proved as per provisions of section 68 of Evidence Act, 1872 is contrary to law. Section 68 of the Evidence Act applies to those documents which require attestation and in order to prove the execution of such a document one has to examine at least one attesting witness. The agreement for sale dated 14th December 1990 is not a document falling under section 68 of Evidence Act which requires attestation and therefore the question of proving the same by attesting witness does not arise at all. The appellant-plaintiff in order to seek attendance of K. Satyam for obtaining his specimen signature for comparing his signature appearing in the agreement for sale dated 14th December 1990 (Exhibit 2) and Power of Attorney (Exhibit 1), filed an application before the learned trial court which was rejected. The appellant-plaintiff also filed an application to examine K. Satyam as 12 plaintiff’s witness under Order XVI Rule 21 of the Code however the same was also rejected by the learned trial court. Thus, the appellant-plaintiff has made several endeavours to prove the said agreement for sale but failed in her attempt. The First Appellate Court could have compared the signature of K. Satyam appearing in the agreement for sale (Exhibit 2) with Power of attorney (Exhibit 1) since a court is an expert of experts as per Section 45 of the Evidence Act.

10.2. In reply to the contentions raised on behalf of the appellant-plaintiff, Mr. N.A Khan, learned advocate for the respondent-defendant submitted that the learned trial court wrongly relied upon the agreement for sale (Exhibit 2) which was not proved as per the provisions of the Evidence Act. Neither the scribe nor any attesting witness to the agreement came before the court to prove the contention of the document which was executed in their presence. Therefore, the agreement for sale (Exhibit 2) has got no evidentiary value in the eye of law. Mere marking of a document is not sufficient until and unless the execution of the document is proved along with its contents.

10.3. Upon going through the judgment of the learned First Appellate Court, it is found that it has held that the Agreement for Sale namely Exhibit 2 has not been proved in compliance with Section 68 of the Indian Evidence Act.

10.4. For the sake of convenience of discussion section 68 of the Evidence Act is reproduced hereunder: “68. Proof of execution of document required by law to be attested.––If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for 13 the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”

10.5. Section 68 of the Evidence Act applies only to documents which are required by law to be attested by witnesses, such as wills. The words ‘required by law’ apply to documents, which, by statute are required to be attested. The law as to attestation of documents is contained in various enactments. Thus, that relating to attestation of wills is contained in Section 63 (c) of the Indian Succession Act. The mode of proving documents required by law to be attested has been laid down in Section 68 to 72 of the Indian Evidence Act. If, however, a document which is not required to be attested but the parties get it attested by witnesses, this superfluous act does not attract the provisions of this section. When a document is produced and tendered as evidence, the first point for consideration is whether it is one which the law requires to be attested. The general object is to give effect to the law relating to the attestation of documents, which is itself enacted for the purpose of ensuring the genuineness of certain documents in respect of which claims are made. The law as laid down in section 68 is imperative and does not, on the face of it, admit any relaxation except in the cases provided for in Sections 69 to 71. Section 68 deals with the mode of proof of a document which requires that until at least one attesting witness has been called for the purpose of proving the execution (if he is alive and capable of giving 14 evidence) the document required by law to be attested shall not be used in evidence.

10.6. In the backdrop of the provisions as above, let me examine whether the agreement for sale requires to be proved by attesting witnesses. The document in question in the present case at hand is an agreement for sale. As per Sections 68 to 71 of the Indian Evidence Act, the proof of the signatures of the attesting witnesses is necessary only when the document is required by law to be so attested. In case, the document does not require attestation, Sections 68 to 71 would be of no avail. This is clear from Section 72 of the Indian Evidence Act. As per Section 72 of the Indian Evidence Act, an attested document, that is not required to be attested, would have to be proved as if it were unattested. An agreement of sale is not a document which requires attestation. Therefore, the proof that would be required as per Section 72 would be dehors the attestation in the said document.

10.7. Thus, it has been rightly argued on behalf of the appellant-plaintiff that Section 68 of the Indian Evidence Act has no manner of application so far as proving Agreement for Sale is concerned.

10.8. Be that as it may, at this stage it would be profitable to reproduce section 67 of the Evidence Act as hereunder. “67. Proof of signature and handwriting of person alleged to have signed or written document produced. ––If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”

10.9. This section does not lay down any specific mode of proof, and therefore the execution of a document being a question of fact, can be 15 proved like any other fact by circumstantial evidence as well but the circumstantial evidence must be sufficiently strong to carry conviction. Such evidence may consist of the internal evidence contained in the document itself and the oral evidence of witnesses who may prove other surrounding circumstances. We have already discussed that section 68 deals with the proof of the execution of the document required by law to be attested and provides that such a document shall not be used as evidence until at least one attesting witness has been called upon for proving its execution. Where the documents by law not required to be attested, the provisions of section 67 would apply. (See Ramibai versus Life Insurance Corporation of India1). If the genuineness of the contents or correctness of the contention of the document controverted, proof of contents as required by section 67 is insisted upon. The requirement in section 67 is only that the handwriting was proved to be that of the person concerned. In order to prove the identity of the handwriting, any mode not forbidden by law can be resorted to. Of course, two modes are indicated by law in sections 45 and 47 of the Evidence Act. The former permits expert opinion to be regarded as relevant evidence and the later permits opinion of any person acquainted with such handwriting to be regarded as relevant evidence. The modes of proving a signature are as follows namely (i) by calling a person who signed or wrote a document; (ii) by calling a person in whose presence the document was signed or written; (iii) by calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written; (iv) by calling a handwriting 1 AIR 1981 MP 69 16 expert; (v) by comparing, the disputed signature or writing with some admitted signature; (vi) by proof of an admission by the person who is alleged to have signed or written the document that he signed and wrote; (vii) by the statement of the professional scribe that his signature on the document is that of a particular person.

10.10. It appears from the materials on record that the Agreement for Sale tendered by the plaintiff has been marked as Exhibit. However, mere marking of a document does not amount to proof of the same. Insofar as the burden of proof with respect to an agreement of sale is concerned, the issue has been settled by the Judgment of the Hon’ble Supreme Court in Thiruvengadam Pillai versus Navaneethambal and Another2. In the said judgment, the Hon’ble Supreme Court held that where the plaintiff come to the Court alleging that the defendant had executed an agreement of sale in his favour and the defendant denies the execution of such agreement, then the burden of proof is on the plaintiff to prove the existence of the agreement. Therefore, there cannot be any quarrel that the document namely the agreement for sale has to be proved by the plaintiff in accordance with law. None of the witness to the agreement has been examined in Court or the scribe or any person acquainted with the signature of the executant. One cannot be oblivious to the fact that the plaintiff in her evidence has admitted that the agreement for sale does not have the signature of K. Satyam, the owner of the property and K. Sundar Rao, holder of the alleged Power of Attorney. Therefore, in such circumstances, it is much needed that such an agreement for sale is 2 (2008) 4 SCC 530 17 proved in accordance with law by cogent evidence i.e. by examining the witnesses to the agreement. The witnesses to the said agreement have not been examined, particularly in a situation, when the defendant has raised the issue that it is fabricated and forged document.

10.11. The learned Trial Court has proceeded with the suit rather on an assumption that the agreement for sale since has been marked exhibit and the defence witness could not disprove it and there is no challenge to the contents of the agreement for sale, Exhibit 2, hence it stood proved. It is settled proposition of law that the burden of proof lies on the plaintiff to prove such document and he has to discharge the same and cannot bank on any lacuna of the defendant. On such score the learned trial court failed to appreciate that the witnesses to the documents have not been examined to establish primarily the execution of the agreement. Furthermore, contending that the document is fabricated and forged in the written statement itself is a challenge to the contents as well as the entirety of the document in question. She has further in cross examination admitted that the agreement for sale also does not bear the signature of the owner of the property namely K. Satyam and the Attorney Holder namely K. Sundar Rao, which moreso makes it imperative for the plaintiff to establish the genuineness of execution of the said document.

10.12. Similarly, with regard to the Power of Attorney, it is stated in the plaint that the same has been executed on 4th December, 1990. The plaintiff (PW1) in her evidence-in-chief has also deposed that the Power of attorney was executed on 4th December 1990. Whereas the Power of attorney filed before the learned trial court and marked as Exhibit 1 is 18 dated 14th December, 1990. The plaintiff (PW1) herself in her cross examination has stated that the Power of Attorney does not have the signature of the Attorney Holder. There is no satisfactory explanation given by the plaintiff with regard to such discrepancy in the date of execution of said Power of Attorney. The learned First Appellate court has observed that the non-judicial stamp paper of Rs. 5/- under serial number 6164 and 6164/2 dated 13th December, 1990 have been used for the purpose of preparing the said Power of Attorney which is dated 14thDecember, 1990. It has raised a pertinent question as to how the non-judicial stamp paper of 13th December, 1990 could be used for execution of Power of Attorney on 4th December, 1990. No witnesses to the execution of the Power of attorney has been examined to prove the legality and validity of its execution. One cannot be oblivious to the fact that the defendant in his written statement and counter claim has also claimed the said Power of attorney to be fabricated and forged one and sought for declaring it to be null and void.

10.13. In the case of K. Prakash versus B.R. Sampath Kumar3, the Hon’ble Supreme Court held:

#16. The principle which can be enunciated is that where the plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant of decree for specific performance: that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or the other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous true, as considerations or sympathetic considerations. It 3 (2015) 1 SCC 597 19 contemplated under Section 20 of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless, once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established then the court has to exercise its discretion in favour of granting relief for specific performance.”

10.14. Reference may also be made to the decision of Zarina Siddiqui versus A. Ramalingam4, Hon’ble Supreme Court observed as under:- “33. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misleads the court then such discretion should not be exercised by refusing to grant specific performance.”

10.15. Bearing in mind the aforesaid proposition of law as laid down, it is settled that in a suit for specific performance of a contract the necessary ingredient has to be proved and established by the plaintiff so that discretion could be exercised judiciously by the Court in favour of the plaintiff.

10.16. It has been strenuously argued on behalf of the appellant-plaintiff that witness Manu Kumari (DW1), who is the Power of Attorney Holder of the original defendant K. Stayam has never denied the signature of K. Satyam on agreement for sale dated 14th December 1990 (Exhibit 2) rather she deposed that she cannot say whether the signature of K. Satyam is appearing on Exhibit 2. Though the agreement for sale (Exhibit 2) was marked with objection but the respondent herein could not sustain such objection.

10.17. The aforesaid aspect as raised on behalf of the appellant-plaintiff does not and cannot construe to establish and prove the execution of the 4 2015 (1) SCC 705 20 agreement for sale without there being proof of its execution by cogent evidence. Hence such argument advanced on behalf of the appellant- plaintiff does not stand to reason.

10.18. In view of the above discussion the aforesaid substantial questions of law is decided against the appellant-plaintiff. (II) SUBSTANTIAL QUESTION OF LAW No. (a), (e), and (f) in FMAT 2 of 2024 (a) Whether the learned First Appellate Court was justified in passing the impugned judgment/decree reversing the judgment and decree of the learned Trial Court by remanding the suit for de novo hearing under Order XLI Rule 23A of the Code of Civil Procedure, 1908 upon framing of two issues namely: (i) Whether the transaction in this case relied upon by the plaintiff on the basis of Power of Attorney and agreement for sale dated 14th December, 1990 is a sham transaction; and (ii) Whether any fraud has been played upon the defendant without and in absence of any specific defense raised in written statement by the defendant taking such plea before the learned Trial Court. (e) Whether the First Appellate Court was justified in exercising the power under Order XLI Rule 23A of the Code of Civil Procedure, 1908 without there being any ground urged and raised by the respondents/defendant in such appeal about the requirement of reception of additional evidence under Order XLI Rule 27 of the Code of Civil Procedure, 1908. (f) Whether the learned First Appellate Court was justified in reversing the judgment and decree of the learned Trial Court without deciding the appeal on its merit based on available material on record of the learned Trial Court in ignorance of the settled proposition of law as laid down that the power to remand by Appellate Court under the provisions of Order XLI Rule 23 and Rule 23A of the Code of Civil Procedure, 1908 has to be exercised sparingly subject to fulfilment of condition as laid down under Order XLI Rule 24 and 25 of the Code of Civil Procedure, 1908.

#11. Mr. Jayapal, learned advocate appearing for the appellant-plaintiff at the outset submitted that the First Appellate Court by the impugned judgment set aside the judgment and decree of the learned Trial Court and remanded the suit as per provisions of Order XLI Rule 23A of the Code on 21 framing certain additional issues. When sufficient evidence was available on record, the First Appellate Court ought to have passed order upon considering the same rather than remanding the suit for denovo trial and directing the learned Trial Court to re-write the judgment. Moreover, no application under Order XLI Rule 27 of the Code for additional evidence was taken out by the respondent-defendant on ground that such evidence could not be produced despite of due diligence. In the absence of such application the First Appellate Court ought not to have remanded the suit as an open remand particularly when there was no material on record to suggest that the learned Trial Court failed to determine any question of facts or omitted to frame any vital issues while deciding the suit which is a requirement under Order XLI Rule 25 of the Code. Generally, an order of remand should be avoided since the same results in pendency of the suit. The order of remand of suit can be passed by an appellate court but it should be tested with reference to Order XLI Rule 25 of the Code. In support of his contention, he relied on the decision of Hon’ble Supreme Court in (i) P. Purushottam Reddy and another versus Pratap Steels Limited5; (ii) K. Krishna Reddy and others versus Special Deputy Collector, Land Acquisition Unit-II, LMD, Karim Nagar, Andhra Pradesh6.

11.1. Mr. Khan, learned advocate for the respondents-defendants, in reply, submitted that plaintiff filed the suit for specific performance of contract dated 14th December 1990. The appellant-plaintiff sued the defendant on