Page No.# 1/9 GAHC010106572010 2026:GAU-AS:7915 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/133/2010 SMTI. MITALI DEB W/O SRI RAMA KANTA DEB, VILL. KATHALGUL, P.O. BAROIGRAM, P.S. PATHARKANDI, DIST. KARIMGANJ. VERSUS SHUVAN MALAKAR S/O LATE JOGESH MALAKAR @ JUGUE MALAKAR, VILL. NOGHARIA, A TEACHER 1065 NO. SAYED BARI L.P. SCHOOL, ILASHPUR, P.O. BAROIGRAM, P.S. PATHARKANDI, DIST. KARIMGANJ. Advocate for the Petitioner : MR.M DUTTA, MR.A DEKA,MR.M K CHOUDHURY Advocate for the Respondent : MR.A T H AHMED, MR .B MALAKAR,MR.N DHAR BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 06.06.2026 Heard Mr. N. Goswami, learned counsel appearing on behalf of Mr. M.K. Choudhury, learned senior counsel for the appellant. None appears on call for the respondents. Page No.# 2/9 2. This appeal is directed against the First Appellate judgment and decree dated 10.03.2010, passed by the learned Civil Judge, Karimganj in Title Appeal No.81/2006 by which the judgment and decree dated 29.08.2006, passed by the learned Civil Judge (Junior Division) No.2, Karimganj in T.S. Case No.240/2003 was set aside and the suit was remanded back for a fresh disposal with a direction to frame an issue as follows:- a. “Whether the monthly rent for the suit house is Rs.1500/-(Rupees One thousand five hundred only) per month or Rs.400/- (Rupees Four hundred only) per month as averred by the respective parties?” 3. It may be stated that by the impugned judgment and order dated 10.03.2010, the learned First Appellate Court had allowed the appeal on contest and by invoking Order XLI Rule 25 of the CPC, the proceedings of T.S. No.240/2003 was remanded back to the Trial Court to decide the suit afresh by directing the plaintiff to appear as witness and to prove her case as well as by framing an issue as already stated hereinbefore. Accordingly, the appeal was allowed on contest and the judgment of the trial Court was set aside and quashed. The records reveal that on allowing the appeal, appellate decree was drawn up. 4. In view of the issues involved it would be relevant to quote the provisions of Order XLI Rule 23, Order 41 Rule 23 A and Order XLI Rule 25 of the CPC is as follows:- “Order XLI Rule 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, Page No.# 3/9 which shall 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.” “Order XLI Rule 23A. Remand in other cases.— 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". “ Order XLI Rule 25. Where 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 therefore within such time as may be fixed by the Appellate Court or extended by it from time to time.” 5. From the above quoted provisions of Order XLI Rule 23, Order XLI 23 A and Order XLI Rule 25, the application of the said three provisions are different. If the matter is remanded in exercise of power under Order XLI Rule 25 then as per requirement of the said provision, the trial Court is to be directed to take additional evidence required and accordingly, the learned trial Court shall proceed to try such issues and trial Court shall return the evidence to the appellate Court along with its finding thereon and reasons therefor. Thus, in the considered opinion of the Court insofar as the provision of Order XLI Rule 25 of the CPC is concerned, the appellate Court continues to be in seisin of the matter and calls upon the trial Court to record finding on some issue or issues and then send the finding and reason to the appellate Court Page No.# 4/9 within the time as fixed. 6. Therefore, in this case, as the learned First Appellate Court had set aside the judgment and decree passed by the learned trial Court and remanded the matter back for a fresh decision, this would be a case where actually the remand is being made within the meaning of provision of Order XLI Rule 23 A. 7. As per the provisions of Order XLI, Rule 23 A of the CPC, it is provided that the appellate Court may remand suit to the trial Court even those such suit has been decided on merit and it provides that the trial Court has disposed of a suit on merit otherwise than on a preliminary point and the decree is reversed in appeal and if appellate Court considers that re-trial is necessary, appellate Court has power to remand the suit to the trial Court. In such cases where the remand is made under Order XLI, Rule 23 A of the CPC, an appeal would lie under the provisions of Order XLIII Rule 1 (u) of the CPC. 8. Accordingly, the Court is inclined to hold that though the learned First Appellate Court had referred to the provision of Order XLI, Rule 25 for remanding the matter back to the learned Trial Court. However, the contents of the judgment clearly indicates that the judgment of the learned trial Court was set aside and the matter was sent back for a fresh trial and/ or re-trial. 9. Accordingly, this appeal would be maintainable not as appeal under Section 100 of the CPC but it would be a second appeal against orders under Order XLIII, Rule 1 (u) of the CPC. 10. This appeal was admitted for hearing by order dated 28.06.2010 on the following substantial question of law:- Page No.# 5/9 “Whether, in absence of any variance between the parties in their pleadings on the quantum of rent for the suit premises involved, the lower appellate Court had jurisdiction in invoking its power under Order 41 Rule 25 of the C.P.C. in framing an issue to that effect and requiring the learned trial Court to record to record evidence and its findng thereon?” 11. In the context of above substantial question of law as framed by this Court, on a perusal of the TCR of the learned trial Court, it is seen that the appellant/ plaintiff, in the plaint, had pleaded that the monthly rent of the suit premises was Rs.1500/- (Rupees One thousand five hundred only) per month. On a careful perusal of the written statement, the original of which is in Bengali language, the Court has failed to find any pleadings in the written statement by the respondent/ defendant that the monthly rent of that suit premises is Rs.400/- (Rupees Four hundred only) per month. However, the plaintiff had examined Sri Ramakanta Deb, the husband of the appellant/ plaintiff as PW-1. In course of his cross-examination a suggestion was given to PW-1 that the rent was Rs.400/- (Rupees Four hundred only) per month which was denied by the PW-1. The plaintiff had also examined the Officiating Postmaster as PW-2, who had deposed regarding the service of notice through registered post with A/D, which is not relevant for the purpose of determination of the issues involved herein. 12. The respondents has examined one Brajendra Malakar as DW-1 who in his evidence-on-affidavit had stated that the monthly rent of the premises was Rs.400/- (Rupees Four Hundred only) per month. However, the said part of the evidence is not borne by or supported by the pleadings in the written statement. The respondents had also examined one Sunil Namasudra as DW- 2, who had also referred to the monthly rent as Rs.400/- (Rupees Four hundred only) Shuvan Malakar, was examined as DW-3, who had filed his Page No.# 6/9 evidence-on-affidavit on 07.03.2005 and he had also filed an additional evidence-on-affidavit on 24.06.2025, for which objection of the appellant/ plaintiff was recorded. The appellant examined Ranendu Deb as DW-4, who was the sub Postmaster. 13. However, it would not be relevant to deal with the evidence of the said witnesses, in view of the substantial question of law framed the only issue is as to whether whether there are pleadings to show that the defendants had made a statement or not in the written statement that the rent of the suit premises was Rs.400/- (Rupees Four hundred only) per month. 14. As indicated above on a perusal of the written statement, there is no statement by the respondent/ defendant that the rent of the suit premises was Rs.400/- (Rupees Four hundred only) per month. 15. Therefore, other issues of the learned trial Court on which the suit was decided is not required to be gone into or examined as the learned First Appellate Court did not give a conclusive finding on any of the issues decided by the learned trial Court same and except of framing additional issues as to whether the monthly rent of the suit house was Rs.1500/- (Rupees One thousand five hundred only) per month or Rs.400/- (Rupees Four hundred only) per month as averred by the respective parties. In this regard there is no averment by the respondent/ plaintiff in the written statement that the rent was not Rs.1500/- (Rupees One thousand five hundred only) per month but was Rs.400/- (Rupees Four hundred only) per month. 16. Accordingly, in the absence of any pleadings in the written statement Page No.# 7/9 regarding the rent to be Rs.400/- (Rupees Four hundred only) per month, the substantial question of law framed by this Court by order dated 28.06.2010 is answered by holding that there is no pleadings in the written statement that the rent of the suit premises was Rs.400/- (Rupees Four hundred only) per month. Accordingly, the evidence by the DW-1 and DW-2 stating the rent to be Rs.400/- (Rupees Four hundred only) per month is clearly beyond pleadings and it is too well settled that no amount of evidence which is beyond pleadings can be looked into by the learned trial Court. 17. Accordingly, the First Appellate Court could not have invoked power either under Order XLI, Rule 25 of the CPC or under XLI, Rule 23 A of the CPC by framing additional issues as indicated above and to remand the matter back to the learned trial Court for a fresh decision which is actually a re-trial of the suit. 18. In the absence of any pleadings in the written statement stating the aggrieved rent of the suit premises to be Rs.400/- (Rupees Four hundred only) per month, as no evidence can be read beyond pleadings, the impugned decision of the learned First Appellate Court to remand the matter back to the learned trial Court for a fresh decision on the additional issues framed is found to be illegal and perverse, in contrary to the pleadings on record. 19. Accordingly, the impugned judgment and consequential decree passed by the learned First Appellate Court dated 10.03.2010, passed by the learned Civil Judge, Karimganj [now Civil Judge (Senior Division), Sribhumi] in T.A. No.81/2006 is hereby set aside and the proceedings of T.A. No.81/2006 is restored to the file of the said learned Court. Page No.# 8/9 20. The learned Civil Judge (Junior Division) No.1, Sribhumi shall send back the records of T.S. No.240/2003 back to the Court of learned Civil Judge (Senior Division), Sribhumi within a period of 3 (three) weeks from the date of production of a certified copy of the order. 21. This appeal stands allowed to the extent as indicated above. 22. Under such circumstances there shall be no order as to cost. 23. The appellant/ plaintiff shall produce a certified copy of the order before the Court of learned Civil Judge (Junior Division) No.1, Sribhumi in connection with T.S. No.240/2003. On production of the certified copy the said learned Court is requested to send the records of T.S. No.240/2003 to the learned Civil Judge (Senior Division), Sribhumi. 24. On receipt of records the learned Civil Judge (Senior Division), Sribhumi shall issue notice to the respondent and re-hear the appeal on the basis of materials available on record. 25. The Registry shall expeditiously sent back the respective records to the learned trial Court and the learned First Appellate Court along with a copy of the order to be made part of record by the said learned Courts. 26. The appellant shall appear before the Civil Judge (Junior Division) No.1, Sribhumi within a outer limit of 3 (three) weeks from the date of the order and produce a certified copy as directed above. 27. Before parting with the records, this Court in paragraph no.9 has held that this appeal shall not be maintainable under Section 100 CPC, but the appeal shall be maintainable under Order XLIII Rule 1(u) as a S.A.O. Page No.# 9/9 Therefore, the Registry shall re-register the appeal as S.A.O., which shall be treated as allowed and disposed of. JUDGE Comparing Assistant