4-AO-16-2026 (C).doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIRCUIT BENCH AT KOLHAPUR CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 16 OF 2026 WITH INTERIM APPLICATION NO. 4086 OF 2025 IN APPEAL FROM ORDER NO. 16 OF 2026 Anantrao Ganpatrao Patil (since deceased) ] through his Legal Heirs, Suman Anantrao ] Patil and others ] Appellants Vs. Shantilal Kantilal Patil and others ] Respondents ….. Mr. Sarang Satish Aradhye Advocate for Appellants. Mr. Shardul Diwan, Advocate for Respondent No.1. ….. CORAM: SANDESH D. PATIL, J. DATED: 22nd JUNE 2026. P. C. : 1. Heard Mr. Aradhye, learned counsel appearing for the appellants as well as learned counsel appearing for respondent No.1. 2. The appellants have circulated this matter. The challenge in the present appeal is to the judgment dated 4th September 2024 passed by the learned District Judge–2, Barshi, Solapur in Regular Civil Appeal No.98 of 2018 whereby ‘no written statement’ order dated 18th June, Shailaja 1 SHAILAJA SHRIKANT HALKUDE Digitally signed by SHAILAJA SHRIKANT HALKUDE Date: 2026.06.23 10:51:39 +0530 4-AO-16-2026 (C).doc 2002 passed against present respondent No.1 who was defendant No.1 was set aside, subject to payment of costs of Rs. 10,000/-, and the matter was remanded to the Trial Court for fresh adjudication with a direction to dispose of the suit within eight months from the date of the said order. 3. Mr. Aradhye, learned counsel for the appellants, contended that the learned Appellate Court erred in invoking the provisions of Order XLI Rules 23 and 23-A of the Code of Civil Procedure, 1908 ("CPC"). He submitted that, instead of remanding the matter to the Trial Court, the Appellate Court ought to have decided the appeal on its own merits. According to him, even assuming that certain issues had not been framed by the Trial Court, the Appellate Court was vested with powers under the CPC to frame the necessary issues and adjudicate the matter finally, rather than directing a remand. In support of his submission, he relied upon the judgment of this Court in case of Rameshlal Gurudasmal Adwani, Since deceased by his legal heir and representatives, Vinod Rameshlal Adwani Vs. Gajanan Dadoba Pawar and others, Appeal From Order No.874 of 2016 decided on 24th July, Shailaja 2 4-AO-16-2026 (C).doc 2025. He invited my attention to paragraphs 18 and 19 to buttress his submission that the remand order could not have been passed and that the Appellate Court ought to have decided the matter on merits without remanding it to the learned Appellate Court. Learned counsel for the appellants prayed for allowing the appeal and setting aside the impugned judgment passed by the Appellate Court. 4. Mr. Diwan, learned counsel appearing for Respondent No. 1, supported the impugned judgment. He submitted that, pursuant thereto, the written statement has already been filed, issues have been framed, and the suit is ripe for trial. According to him, the impugned judgment suffers from no infirmity and, therefore, calls for no interference in exercise of the jurisdiction of this Court. 5. Heard learned counsel for the respective parties. In this case, defendant No.1/respondent No.1 herein though appeared before the Trial Court had not filed the written statement. He urged before the Appellate Court that his written statement ought to have been taken on record. He furnished reasons as to why he could not file the written Shailaja 3 4-AO-16-2026 (C).doc statement. Learned Appellate Court was convinced by the reasons and set aside ‘no written statement’ order dated 18th June, 2002 passed against respondent No.1 herein who was defendant No.1 in Regular Civil Suit No.287 of 2000 by imposing costs of Rs.10,000/-. This exercise was undoubtedly carried out under the provisions of Section 105 of the C.P.C. The said order of allowing defendant No.1 to file written statement on record cannot be termed as perverse order. Defendant No.1 had acted in terms of the said order. The Appellate Court had the power to pass such an order under Section 105 of the Code of Civil Procedure. According to the learned counsel, the order setting aside the 'no written statement' order does not warrant interference by this Court. 6. Once this Court comes to the conclusion that the impugned order is just, proper and reasonable, the next question that falls for consideration is whether issues are required to be framed and the matter could be remanded for trial. The learned Appellate Court has rightly adopted such a course by exercising the powers conferred under Order XLI Rules 23 and 23-A of the Code of Civil Procedure, 1908. Shailaja 4 4-AO-16-2026 (C).doc 7. The submission of Mr. Aradhye that the learned Appellate Court ought to have framed the issues itself and decided the appeal without remanding the matter to the Trial Court cannot be accepted, particularly in view of the fact that no written statement had been filed before the Trial Court. Although the written statement has now been filed, issues are yet required to be framed and a retrial has become necessary. The learned Appellate Court was conscious of the time that would be consumed in undertaking such an exercise and has, therefore, appropriately directed the Trial Court to conclude the trial within a stipulated time frame. The judgment relied upon by the learned counsel for the appellants in Rameshlal Gurudasmal Adwani (since deceased) through his legal heirs and representatives, Vinod Rameshlal Adwani (supra) does not advance the appellants’ case. It is undoubtedly well settled that the power of remand should not be exercised by an Appellate Court as a matter of routine. However, the said decision is distinguishable on facts and has no application to the present case for the reasons recorded in the foregoing paragraphs. 8. In view of the above, the following order is passed: Shailaja 5 4-AO-16-2026 (C).doc :O R D E R : (i) Appeal from Order stands dismissed. (ii) In light of dismissal of Appeal from Order, nothing survives in the Interim Application, hence, the same also stands dismissed. (iii) Since the Appellate Court has already directed the Trial Court to conduct an expeditious hearing of the suit, this Court further requests the Trial Court to conclude the hearing and dispose of the suit as expeditiously as possible, and preferably within a period of six months from the date of receipt of this order. [SANDESH D. PATIL, J.] Shailaja 6