1 CGHC010453482025 2026:CGHC:38259 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR MA No. 213 of 2025 Shrimati Shahina Nawaz W/o Sheikh Nawaz Aged About 41 Years R/o Sichai Colony, Jagdalla Champa, Tehsil Champa, Distt. Janjgir Champa, Chhattisgarh. --- Appellant versus 1 - Shrimati Sukhwati Kumar Wd/o Late J. Kumar Aged About 53 Years R/o Chandupara, Champa, Tehsil Champa, Distt. Janjgir Champa, C.G., At Present R/o Main Road, Korba, Tehsil Korba, Distt. Korba, Chhattisgarh. 2 - Sushil Kumar Masih S/o Late J. Kumar Aged About 41 Years R/o Chandupara, Champa, Tehsil Champa, Distt. Janjgir Champa, C.G., At Present R/o Main Road, Korba, Tehsil Korba, Distt. Korba, Chhattisgarh. 3 - Sushant Masih S/o Late J. Kumar Aged About 38 Years R/o Chandupara, Champa, Tehsil Champa, Distt. Janjgir Champa, C.G., At Present R/o Main Road, Korba, Tehsil Korba, Distt. Korba, Chhattisgarh. 4 - Pradeep Patel S/o Late Ramlal Patel R/o Champa, Tehsil Champa, Distt. Janjgir Champa, Chhattisgarh. 5 - Satish Patel S/o Late Ramlal Patel R/o Champa, Tehsil Champa, Distt. Janjgir Champa, Chhattisgarh. 6 - Sandhya Patel S/o Late Ramlal Patel R/o Champa, Tehsil Champa, Distt. Janjgir Champa, Chhattisgarh. 2 7 - Manish Patel S/o Late Shyamlal Patel Aged About 27 Years R/o Ghogharanala, Champa, Tehsil And P.S. Champa, Distt. Janjgir Champa, Chhattisgarh. 8 - Chunnilal S/o Late Tiharuram Patel Aged About 53 Years R/o Ghogharanala, Champa, Tehsil And Ps Champa, Distt. Janjgir Champa, Chhattisgarh. 9 - Sammelal S/o Late Tiharuram Patel Aged About 57 Years R/o Ghogharanala, Champa, Tehsil And Ps Champa, Distt. Janjgir Champa, Chhattisgarh. 10 - Sharad Patel S/o Late Punnilal Aged About 35 Years R/o Ghogharanala, Champa, Tehsil And Ps Champa, Distt. Janjgir Champa, Chhattisgarh. 11 - Shrimati Sarita Masih D/o Manglu Aged About 50 Years Wd/o Late Jacob Masih, R/o Shukla Khar, Bankimonger, Korba, Tehsil And Distt. Korba, Chhattisgarh. 12 - Shrimati Lalita Masih D/o Manglu Aged About 47 Years R/o Chandupara, Champa, Tehsil And Ps Champa, Distt. Janjgir Champa, Chhattisgarh. 13 - State Of Chhattisgarh Through The Collector Janjgir Champa, Distt. Janjgir Champa, Chhattisgarh. --- Respondents For appellant : Mr. Shobhit Koshta, Adv. For respondents No. 1 to 3 : Mr. H.V. Sharma, Adv. For Respondent No. 11 : Mr. Vikhyat Arora, Panel Lawyer. Hon'ble Shri Justice Naresh Kumar Chandravanshi Order On Board 25-8-2026 1. This misc. appeal has been filed by the appellant/defendant No. 6 under Order 43 Rule 1(u) of the Civil Procedure Code, 1908 (hereinafter referred to as ‘CPC’) challenging the judgment of remand (Annexure A-2) dated 22-5-2025 passed by the 1st 3 District Judge, Distt. Janjgir-Champa in Civil Appeal No. 42A/2021, whereby learned 1st appellate Court has set aside the judgment and decree (Annexure A-1) dated 31-8-2021 passed by the Civil Judge Class 1, Champa, Distt. Janjgir-Champa in Civil Suit No. 49/A/2012 and remitted the civil suit with direction to the trial Court to provide opportunity of adducing evidence to both the parties in respect of two sale deeds dated 19-1-2021 and 12-6- 2023, which was accepted by the 1st appellate Court, and pass the judgment afresh. (hereinafter parties shall be referred to as per their status before the trial Court.) 2. Facts of the case in brief, are that, respondents No. 1 to 3/plaintiffs filed a civil suit seeking declaration of their title and permanent injunction against the defendants in respect of the suit land bearing Khasra No. 1026/6 area 0.15 acre (henceforth referred to as ‘suit land’), which was forming part of Khasra No. 1026/1 area 0.54 acre. As per the pleading of the plaintiffs, J. Kumar (husband/father of plaintiffs) and his brother Manglu Kumar (original defendant No. 7) purchased suit land for sale consideration of Rs. 500/- vide registered sale deed dated 7-3- 1979 from defendants No. 1 to 5 and obtained possession of it also. The suit land was recorded in their name in revenue record. After death of J. Kumar (husband/father of plaintiffs), they approached to the revenue authorities to get mutated the suit land 4 in their names. Then, it was informed to them that, the suit land is recorded in the name of appellant/defendant No. 6, whereas, the plaintiffs are still in possession over the suit land. But defendant No. 6 has fraudulently got recorded it in her name and threatened them to dispossess from the suit land, therefore, plaintiffs filed the civil suit. 3. Defendant No. 6 filed her reply stating therein that, plaintiffs are not in possession over the suit land, rather alleged sale deed executed in favour of said J. Kumar and his brother Manglu Kumar was illegal. She has further pleaded that, she has purchased the suit land along with other portions of land bearing Khasra No. 1026/1 from the land owner vide registered sale deed in the year 2009, since then, she was in possession over the suit land and other parts of land of Khasra No. 1026/1. Legal representatives of original defendant No. 1 also filed their written statement denying the pleading of the plaintiffs. 4. On the basis of pleadings of the parties, learned trial Court framed as many as 9 issues and put the parties to trial on the aforesaid issues. After recording evidence, learned trial Court recorded its finding over the issues, which is reproduced as under:- स. क. वाद प्रश्न नि कर्ष 1. क्या वादभूनि स्थित ग्रा चांपा, प०ह० ं० 4, रा०नि ०० एवं तहसील चांपा, जि लाः प्राणि#त हीं 5 ां गीर- चांपा खसरा ंबर-1026/1 रकबा 0.15 एकड़ वादीग# के वत्व की भूनि है ? 2. क्या वादभूनि के संबंध े प्रतितवादी कांक 6 श्रीती शानिह ा वा के पक्ष ें नि ष्पानिदत निवक्रय निवलेख निद ांक 11/08/2009 शून्य हो े से वादीग# पर बंध कारी हीं हो े घोनिर्षत निकए ा े योग्य है ? प्राणि#त हीं 3. क्या प्रतितवादी क्रांक 1 से 6 को वयं ता अन्य के ाध्य से वादभूनि पर प्रवेश या दखल निकए ा े से ाई नि र्षेधाज्ञा से नि र्षेतिधत निकए ा े योग्य है ? प्राणि#त हीं 4. क्या निवक्रय निवलेख निद ांक 07/03/79 ें प्रतितवादीग# पुन्नीलाल एवं चुन्नीलाल को बालिलग हो े पर भी ाबालिलग बताकर निवक्रय संव्यवहार संपन्न निकया गया ? प्राणि#त हीं 5. क्या वादभूनि की निवणिशनिAया अणिभवचनि त हीं हो े वादी का दावा अप्रचल शील है? प्राणि#त 6. क्या निवक्रय निवलेख निद ांक 07/03/79 ें इस वाद के प्रतितवादी कांक 1 से 5 से संबंतिधत अनिवभाजि त निहन्दू परिरवार के कु छ सदयों द्वारा अंतर# निकया गया, यनिद हां तो प्रभाव ? प्राणि#त 7. क्या दावा सयबातिधत है ? प्राणि#त हीं 8. क्या प्रतितवादी कांक 6 वादीग# से रू० प्राणि#त हीं 6 50,000/- प्रतितकारात्क व्यय प्रानिH की अतिधकारी है 9. सहायता एवं व्यय नि #य कं तिIका 17 अ ुसार 5. After considering the evidence, learned trial Court dismissed the civil suit filed by the plaintiffs, which was challenged by them by filing the first appeal under Order 41 Rule 1 read with Section 96 of the CPC bearing Civil Appeal No. 42A/2021 before the 1st appellate Court. They also filed an application under Order 41 Rule 27 of the CPC along with two sale deeds dated 19-1-2021 and 12-6-2023. 6. Learned 1st appellate Court, after hearing both the parties on aforesaid application, allowed the same on the ground that, aforesaid two sale deeds may change the finding of the trial Court. Hence, after setting aside the judgment and decree passed by the trial Court, it remitted the matter to the trial Court with direction to provide opportunity to both the parties to adduce evidence on aforesaid sale deeds and pass judgment afresh on merit. This judgment of remand dated 22-5-2025 passed by the 1st appellate Court has been challenged by the defendant No. 6 in instant appeal. 7. Learned counsel appearing for the appellant/defendant No. 6 would submit that, the judgment passed by learned 1st appellate 7 Court directing wholesale and open remand under Order 41 Rule 23-A of CPC is against the settled law, as it has not reversed the findings on all or any of the issues recorded by the trial Court. He further submits that, if the two sale deeds dated 19 -1-2021 and 12-6-2023 were relevant , then it ought to have been filed by the plaintiffs before the trial Court having onus to prove its case. Even otherwise, plaintiffs filed their civil suit claiming their title over the suit land on the basis of registered sale deed dated 7-3-1979. Aforesaid two sale deeds have been executed much later than it, then how it is relevant to decide the instant civil suit, has not been stated by learned 1st appellate Court and it has casually allowed the application filed by the plaintiffs under Order 41 Rule 27 of the CPC. Thus, the impugned judgment as well as order allowing application filed by the plaintiffs under Order 41 Rule 27 of the CPC are liable to be set aside. 8. Per contra, learned Counsel appearing for the respondents No. 1 to 3/plaintiffs, would submit that, learned 1st appellate Court duly considered the application filed by them under Order 41 Rule 27 of the CPC along with two sale deeds and finding those sale deeds to be material for deciding the civil suit, has allowed the application and rightly remitted the matter to the trial Court to adduce evidence on said two sale deeds. Hence, the impugned judgment does not call for any interference by this Court. 9. I have heard learned counsel for the parties and perused the 8 judgment passed by the learned trial Court as well as the 1st appellate court. 10. A bare perusal of the impugned judgment passed by the 1st appellate Court shows that, it has not considered any of the finding recorded by the trial Court and simply remitted the matter after allowing application under Order 41 Rule 27 of the CPC filed by the plaintiffs along with two sale deeds dated 19-1-2021 and 12-6-2023 with direction to provide opportunity to both the parties to adduce evidence on aforesaid sale deeds. Order 41 of the CPC contemplates the provision of appeal from original decree. It also empowers the Appellate Court to order remand the case under three circumstances mentioned in it. These 3 circumstances have been provided under Order 41 Rule 23, Rule 23-A and Rule 25 of the CPC, which reads as under :- “23. Remand of case by appellate court. — 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 readmit 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. 9 23-A. Remand in other cases.— Where the court from whose decree an appeal is preferred has disposed of the case otherwise than on preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the appellate court shall have the same powers as it has under Rule 23. 25. Whether appellate court may frame issues and refer them for trial to court whose decree appealed from.— 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 therefor within such time as may be fixed by the appellate court or extended by it from time to time.” 11. Order 41 Rule 23 of CPC is invocable by the Appellate Court where the appeal has arisen from the decree passed on a preliminary point; in other words, where the entire suit has been disposed of by the trial court on a preliminary point and such decree is reversed in appeal and the Appellate Court thinks proper to remand the case for fresh disposal. While doing so, the Appellate Court may issue further direction for trial of certain 10 issues. 12. According to Order 41 Rule 23-A of CPC, the Appellate Court may remand the suit to the trial Court even though such suit has been disposed of on merits. It provides that where the trial court has disposed of the suit on merits and the decree is reversed in appeal and the Appellate Court considers that retrial is necessary, the Appellate Court may remand the suit to the trial Court. Thus, on twin conditions being satisfied, the Appellate Court can exercise the same power of remand under Order 41 Rule 23-A of CPC. 13. In so far as Order 41 Rule 25 of CPC is concerned, the Appellate Court continues to be in seisin of the matter; it calls upon the trial Court to record the finding on some issue or issues and to send that finding to the Appellate Court. The power under Order 41 Rule 25 is invoked by the Appellate Court, where it holds that the trial Court which passed the decree omitted to frame or try any issue or determine any question of fact essential to decide the matter finally. The Appellate Court, while remitting some issue or issues, may direct the trial Court to take additional evidence on such issue (s) and return the evidence along with its finding and reasons thereof. 14. In the case of P. Purushottam Reddy and another Vs. Pratap Steels Limited [(2002) 2 SCC 686], the Supreme Court has held that unless the decree in appeal is reversed by the First Appellate 11 Court and retrial is considered necessary, wholesale remand can not be made by the First Appellate Court. It has been held as under: “10. 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 in as much 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 therefor 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 it, such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Sub- 12 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 SC 365 at p. 399), 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 de hors 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 41 Rule 31 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 13 unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided. 11. In the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial Court. It is not a case where a retrial is considered necessary. Neither Rule 23 nor Rule 23-A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule 25. So far as the objection as to maintainability of the suit for failure of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix A, CPC is concerned, the High Court has itself found that there was no specific plea taken in the written statement. The question of framing an issue did not, purely as a question of law which, in their submission, strikes at the very root filed and so the plea was permitted to urge. So far as the plea as to readiness and willingness by reference to clause (c) of Section 16 of the Specific Relief Act, 1963 is concerned, the pleadings are there as they were neither any of the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was very much alive to the issue whether Section 16(c) of the Specific Relief Act was complied with or not and the contentions advanced by the parties in this regard were also adjudicated upon. The High Court was to examine 14 whether such finding of the trial court was sustainable or not in law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material inasmuch as the High Court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration and decision.” 15. In the case of Municipal Corporation, Hyderabad Vs. Sunder Singh [JT 2008 (7) SC 247], the Supreme Court, while considering the scope of Order 41 Rule 23, has held that the Court should be loathe to exercise its power under Order 41 Rule 23 of CPC and an order of wholesale remand should not be passed routinely. It was held as under: “11. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the Court should loathe to exercise its power in terms of Order XLI Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The Appellate Court cannot shirk its duties. 16. In a decision in Ashwinkumar K. Patel Vs. Upendra J. Patel and others [AIR 1999 SC 1125], the Supreme Court has held that the Appellate Court should not ordinarily remand a case under Order 41 Rule 23 of CPC, as such, remand orders lead to 15 unnecessary delay and cause prejudice to the parties and Appellate Court should itself consider material available and should decide the appeal one way or other. It was held as under: “7. In our view, the High Court should not ordinarily remand a case under Order 41, Rule 23, C.P.C. to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders leads to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one-way or other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima-facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary.” 17. Hon’ble Supreme Court in the matter of Arvind Kumar Jaiswal (D) through LR Vs. Devendra Prasad Jaiswal Varun [2023 SCC OnLine SC 146] has observed in para 3 as under :- “3. An order of remand prolongs and delays the litigation and hence, should not be passed unless the appellate court finds that a re-trial is required, or the evidence on record is not sufficient to dispose of the matter for reasons like lack of adequate opportunity of leading 16 evidence to a party, where there had been no real trial of the dispute or there is no complete or effectual adjudication of the proceedings, and the party complaining has suffered material prejudice on that account. Where evidence has already been adduced and a decision can be rendered on appreciation of such evidence, an order of remand should not be passed remitting the matter to the lower court, even if the lower court has omitted to frame issue(s) and/or has failed to determine any question of fact, which, in the opinion of the appellate court, is essential. The first appellate court, if required, can also direct the trial court to record evidence and finding on a particular aspect/issue in terms of Rule 25 to Order XLI, which then can be taken on record for deciding the case by the appellate court.” 18. In the light of aforesaid law laid down by the Apex Court, if legality and correctness of the impugned judgment of the trial Court is seen, then it is fund that, learned trial Court has disposed of the civil suit on merit by recording its finding on all the issues and not on the preliminary issue. Learned 1st Appellate Court has not considered all or any of the findings recorded by learned trial Court and set aside the judgment and decree of the trial Court directing it to decide the suit afresh after providing an opportunity to the parties to lead evidence on said two sale deeds dated 19-1- 2021 and 12-6-2023, whereas the 1st Appellate Court was required to formulate points for determination under Order 41 Rule 31 of the CPC in order to decide the appeal. Order 41 Rule 31 of the CPC provides as under :- 17 “31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state-- (a) the points of determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” 19. Order 41 Rule 31 of the CPC provides procedure for deciding appeal. The law requires substantial compliance of the said provision. Thus, the 1st appellate Court being the final Court of the facts, has to formulate the points for determination and weigh the evidence on the issue, which arises for adjudication and record reasons for its decision on the said point. The first appeal is a valuable right of the parties and parties have to be heard on the question of law and fact. The judgment of the 1st appellate Court must, therefore, reflect the conscious application of mind and record finding supported by the reasons on all the issues arising along with arguments raised by the parties for decision of the appellate court. 20. In the case in hand, learned 1st appellate Court neither framed the point for determination nor addressed all or any of the issues arising along with contentions putforth by the parties for the 18 decision of the Court, rather it straightway considered the application filed by the plaintiffs under Order 41 Rule 27 of the CPC and allowed the same by taking said two sale deeds on record, that too, without any analysis as to how those two sale deeds are relevant to decide the case, rather it abruptly set aside the judgment and decree passed by the trial Court. Thus, the 1st appellate Court has not reversed any of the findings recorded by the trial Court on any of the issues and simply remanded the suit for de novo consideration invoking the power under Order 41 Rule 23-A of the CPC. 21. Learned trial Court has only observed in the impugned judgment that, acceptance of said two sale deeds dated 19-1-2021 and 12-6-2023 may change final finding recorded by the trial Court. It has neither considered nor recorded finding as to why and how retrial is necessary, which is one of the twin conditions to invoke power under Order 41 Rule 23-A of the CPC. Thus, the 1st appellate Court has committed grave illegality in directing the wholesale remand in exercise of power under Order 41 Rule 23 A of the CPC. 22. As has been observed in preceding paragraphs, that only after allowing the application under Order 41 Rule 27 of the CPC, the 1st Appellate Court has remitted the matter to the trial Court without fulfillment of the requirement contemplated under Order 41 Rule 23A of the CPC, then question arises, as to whether on 19 account of filing such application alone, wholesale remand is permissible ? 23. A bare perusal of the impugned judgment of the 1st Appellate Court shows that, it has remitted the case to the trial Court merely to afford an opportunity to the parties to lead evidence to prove/ disprove the said two sale deeds, whereas, being the 1st Appellate Court, it can itself record the evidence and mark those documents, as has been provided in Section 107 of the CPC, which reads thus :- “107. Power of Appellate Court.- (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power- (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein.” 24. In a decision in the case of Vasant Ganesh Damle Vs. Shrikant Trimbak Datar & another [AIR 2002 SC 1237], considering the scope of Section 107 of CPC, the Supreme Court has held as under: 20 “8. The appeal is considered to be an extension of the suit because under S. 107 of the code of Civil Procedure, the appellate Court has the same powers as are conferred by the Code on Courts of original jurisdiction in respect of suits instituted therein. Such a power can be exercised by the appellate Court "as nearly as may be" exercised by the trial Court under the Code.” 25. Hon’ble Supreme Court in the case of S. Umapathy Vs. Arunachalam Pattankattiar and another [AIR 2000 Madras 259] has held that mere receiption of additional evidence cannot be a ground for order of remand and to try the suit once again by the trial court. The relevant portion of the said judgment is as under :- “5. The first infirmity committed by the lower appellate Court is that there is no specific finding and reason for reception of additional documents at the appellate stage and the appellate Court failed to consider the claim of the appellants therein in terms of Order 41. Rule 27(1)(aa) and (2) of CPC. Another infirmity is that in spite of considering those documents, after satisfying the above-mentioned provision, viz, Order 41, Rule 27(1)(aa) and (2), it is open to the lower appellate court to consider the additional documents or additional evidence and record evidence and mark documents as mentioned in Order 41, Rule 27(1), CPC. Here again, the lower appellate Court failed to follow the said procedure. In a matter like this, there should be always endeavour to dispose of the case by the appellate Court itself. When certain commissions and omissions made by 21 the trial Court is brought to the notice of the appellate Court, the same should be corrected by the appellate Court.” 26. In the case of Zarif Ahmad (dead) through LRs & Anr. Vs. Mohd. Farooq [(2015) SCC 673], Hon’ble Spureme Court while considering the provisions of Section 107 and order 41 Rule 24 of the CPC has observed as under :- “13. No doubt, Section 107 of CPC empowers the appellate court to remand a case, but it simultaneously empowers the appellate court to take additional evidence or to require such evidence to be taken. Rule 24 of Order XLI C.P.C provides that where evidence on record is sufficient, appellate court may determine the case finally. It is not a healthy practice to remand a case to trial court unless it is necessary to do so as it makes the parties to wait for the final decision of a case for the period which is avoidable. Only in rare situations, a case should be remanded e.g. when the trial court has disposed of a suit on a preliminary issue without recording evidence and giving its decision on the rest of the issues, but it is not so in the present case.” 27. A perusal of the impugned judgment passed by learned trial Court shows that, after considering the evidence available on record, it has rendered decision in detail. Therefore, merely for affording an opportunity to adduce evidence in said two sale deeds, the civil suit ought not have been remanded to the trial Court for fresh disposal of the case, rather learned 1st Appellate 22 Court ought to have disposed of the case on merits. 28. Accordingly, the impugned judgment and decree of the 1st Appellate Court suffers from grave perversity and illegality, rather, the order allowing application filed by the plaintiffs under Order 41 Rule 27 of the CPC also suffers from illegality for one or other reasons. Order 41 Rule 27 of the CPC provides as under :- “27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if:-- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 23 29. As has been observed in preceding paragraphs that, 1st appellate Court has allowed the application under Order 41 Rule 27 of the CPC on the probability that, allowing two sale deeds dated 19-1- 2021 and 12-6-2023 may change final outcome of the decision of the trial Court. The plaintiffs have sought there title over the suit land on the basis of registered sale deed dated 7-3-1979 executed in favour of J. Kumar and Manglu Kumar, then how aforesaid two sale deeds, which have been executed much later then aforesaid sale deed dated 7-3-1979, could affect it, whereas it is settled law that if there are two sale deeds of same land, then the sale deed executed first shall prevail on the subsequent sale deed. The appellate Court may permit additional evidence only, if the conditions laid down in Order 41 Rule 27(b) of the CPC are satisfied to the Court. This rule will not apply, when, on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment, though it is entirely discretionary, but the discretion ought to have been applied complying with the law and pronouncements in the judgments of Higher Court. 30. Hon’ble Supreme Court in the case of Union of India Vs. Ibrahim Uddin and another [2013 AIR SCW 2752], while dealing with the application under Order 41 Rule 27 of the CPC has held as under :- 24 “26. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq Wd. S.K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., [AIR 1978 SC 798]. 27. Under Order XLI, Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Municipal Corporation of Greater Bombay Vs. Lala Pancham & Ors. (AIR 1965 SC 1008).3 28. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence 25 of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide: State of U.P. Vs. Manbodhan Lal Srivastava, [AIR 1957 SC 912]; and S. Rajagopal Vs. C.M. Armugam & Ors., [AIR 1969 SC 101]. 29. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.” 31. In the case in hand, learned 1st Appellate Court has allowed the application filed by the plaintiffs under Order 41 Rule 27 of the CPC only on the ground that, said two sale deeds dated 19-1- 2021 and 12-6-2023 annexed with the application may affect final outcome of the decision rendered by the trial Court, but it has not been stated by the 1st Appellate Court as to how those two sale deeds can affect the finding/final outcome of the judgment and decree of the trial Court. 26 32. Thus, the 1st appellate Court has completely failed to consider and meet the requirement of Order 41 Rule 27 of the CPC as, it has not been held that for the purpose of pronouncing the judgment, fresh opportunity of adducing evidence is required to be granted to the plaintiffs and the evidence taken by the trial Court is not sufficient to pass a satisfactory judgment. 33. Therefore, impugned judgment dated 22-5-2025 passed by the 1st Appellant Court in the Civil Appeal No. 42A/2021 (Smt. Sukhwati Kumar and ors Vs. Ramlal (dead) through LRs and ors.) making wholesale remand in exercise of its power under Order 41 Rule 23A of the CPC deserves to be and is accordingly set aside. The order of the 1st Appellate Court allowing application under Order 41 Rule 27 of the CPC filed by the plaintiffs is also set aside. 34. Consequently, learned 1st District Judge, Distt. Janjgir-Champa is directed to restore aforesaid appeal in its original number and decide the same afresh. It is further observed that, while hearing, if it is felt that, the plaintiffs have made out a case for reception of additional evidence, after rendering a specific finding, it shall record evidence, mark the documents and shall thereafter considering the judgment and decree of the trial Court, dispose of the appeal on merit. The application filed by the plaintiffs under Order 41 Rule 27 of the CPC is also restored to its original number for fresh consideration and disposal of the same in 27 accordance with law. 35. Since the civil suit was filed by the plaintiffs on 17-10-2012, the 1st Appellate Court is directed to dispose of the appeal expeditiously preferably within a period of 4 months from the date of receipt of certified copy of this judgment. 36. Parties are directed to appear before the 1st Appellate Court on 15-9-2026. 37. Appeal allowed. Certified copy as per rules. No order as to costs. Sd/- (Naresh Kumar Chandravanshi) Judge pathak AVANISH KUMAR PATHAK Digitally signed by AVANISH KUMAR PATHAK Date: 2026.09.03 16:53:16 +0530