[2026:RJ-JP:21965] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Miscellaneous Appeal No. 1388/2018 Shri Keshav Sagar Dharmshala Pavta Through Its Manager Shri Gujarmal Goyal S/o Shri Ballabram Goyal, R/o Pavta, Tehsil Kotputli District Jaipur Rajasthan At Present Manager Pawan Kumar Goyal S/o Puranmal Goyal, R/o Ward No. 5 Pavta, Tehsil Kotputli, District Jaipur (Substituted By The Trial Court Vide Order 1.06.2007) ----Appellant Versus Banshidhar Saini S/o Manguram Saini, R/o Pragpura, Tehsil Kotputli, District Jaipur, Rajasthan ----Respondent For Appellant(s) : Mr. M.M. Ranjan, Senior Advocate assisted by Mr. Lokesh Tiwari For Respondent(s) : Mr. Z.A. Naqvi, Senior Advocate assisted by Mr. Sehban Naqvi, Ms. Rabiya Mateen & Mr. Sahil Khan HON'BLE MR. JUSTICE BIPIN GUPTA Judgment Reportable Date of hearing and conclusion of arguments 12.05.2026 Date on which the judgment was reserved 12.05.2026 Whether the full judgment or only the operative part is pronounced Full Judgment Date of pronouncement 25.05.2026 1. The present civil miscellaneous appeal has been filed assailing the order dated 05.02.2018, passed by the learned Additional District Judge No. 1, Kotputli, District Jaipur (hereinafter referred to as the ‘learned First Appellate Court’) in Civil Appeal No.3/2006, whereby the learned First Appellate Court [2026:RJ-JP:21965] (2 of 14) [CMA-1388/2018] remanded the matter back for fresh disposal; and quashed and set aside the judgment and decree dated 27.09.2005, passed by learned Civil Judge (Junior Division) cum Judicial Magistrate, Kotputli, Jaipur (hereinafter referred to as the ‘learned Trial Court’) in Civil Suit No.104/1999, wherein the suit filed by the plaintiff- appellant against the defendant-respondent for recovery of rent and possession was decreed in favour of the plaintiff-appellant. 2. The facts, in a nutshell, are that the plaintiff-appellant instituted a suit contending that the shop in dispute had been let out to the defendant-respondent on a monthly rent of Rs.400/- for a period of 11 months commencing from 01.05.1988, thereby establishing a relationship of landlord and tenant. It was further averred that the defendant failed to pay rent after November, 1998 despite repeated demands and also failed to vacate and hand over possession of the shop in dispute, in violation of the terms and conditions of the tenancy. Consequently, the plaintiff- appellant served a notice dated 17.02.1999 upon the defendant- respondent, terminating the tenancy with effect from midnight of 28.02.1999 and 01.03.1999. Despite service of the said notice and expiry of the stipulated period, the defendant neither vacated the premises nor delivered possession of the shop in dispute to the plaintiff. Hence, a suit came to be preferred by the plaintiff- appellant seeking recovery of rent and possession. 2.1 The defendant-respondent filed a written statement contending therein that the plaintiff-appellant was not entitled to institute the suit and that a rent note existed, which had deliberately not placed on record by the plaintiff-appellant. It was [2026:RJ-JP:21965] (3 of 14) [CMA-1388/2018] further contended that there was no agreement between the parties requiring the defendant-respondent to vacate the shop upon expiry of 11 months. The defendant-respondent also pleaded that the rent had been remitted through money order, which was refused by the plaintiff-appellant and consequently returned. It was further alleged that the suit had been instituted only with an intention to enhance the rent and that no valid ground for eviction existed. Accordingly, the defendant-respondent prayed for the dismissal of the suit. 2.2 The learned Trial Court framed the necessary issues and, on the basis of the findings recorded thereon, decreed the suit filed by the plaintiff-appellant vide judgment and decree dated 27.09.2005. The defendant-respondent was directed to hand over the vacant possession of the shop in dispute within a period of two months. The learned Trial Court further directed payment of arrears of rent for the period from 01.11.1998 to 31.03.1999 @ Rs.400/- per month, as well as rent for the period from 01.04.1999 to 31.08.2005, amounting to 77 months at the same rate. It was also ordered that simple interest @ 6% per annum shall be paid on the outstanding rent. Further, till delivery of possession, the defendant was held liable to pay mesne profits at the rate of Rs.400/- per month. 2.3 Aggrieved by the judgment and decree dated 27.09.2005 passed by the learned Trial Court, the defendant-respondent preferred an appeal before the learned First Appellate Court. The learned First Appellate Court, vide judgment dated 05.02.2018, [2026:RJ-JP:21965] (4 of 14) [CMA-1388/2018] remanded the matter back to the learned Trial Court with a direction to hear and decide the suit afresh. 2.4 Being aggrieved with the order of remand dated 05.02.2018, the plaintiff-appellant has preferred the present appeal. 3. Learned counsel for the appellant, at the outset, submitted that the impugned order dated 05.02.2018 is contrary to law and the material available on record. He further submitted that the entire material and evidence was already available on record and, therefore, the learned First Appellate Court ought to have decided the appeal itself instead of remanding the matter back to the learned Trial Court. 3.1 Learned counsel for the appellant further submitted that the defendant-respondent did not take any plea with regard to the status of landlord-tenant relationship. Contrarily, the defendant- respondent accepted the tenancy agreement executed between the parties and no plea with regard to society or trust was raised in the written statement. Thus, the learned First Appellate Court erred while entering in the controversy with regard to the status of the plaintiff-appellant as landlord, which was not disputed primarily. 3.2 Learned counsel for the appellant also submitted that the learned First Appellate Court erred while not taking into consideration the title or constitution of the appellant- Dharamshala. He further submitted that the rent note clearly stipulated that the appellant-Dharamshala was managed through its Manager. Thus, the question regarding the status of the [2026:RJ-JP:21965] (5 of 14) [CMA-1388/2018] appellant was never raised in the suit for eviction and could not be even raised as the same is not applicable. 3.3 Learned counsel for the appellant further submitted that the learned First Appellate Court erred while remanding the matter back to the learned Trial Court for deciding the matter afresh, without affording any plausible reasoning. Learned counsel submitted that the learned First Appellate Court exceeded the scope of its jurisdiction under Section 96 read with Order XLI CPC while remanding the matter back to the learned Trial Court. He submitted that the power of remand is an exception and not the rule, and such power can be exercised only in circumstances as specifically contemplated under Order XLI Rules 23, 23-A and 25 CPC. 3.4 Learned counsel for the appellant submitted that as the learned Trial Court in the present case had already decided the suit on merits after appreciation of the entire evidence available on record and, therefore, there was no occasion for the learned First Appellate Court to remand the matter back for a fresh decision rather the learned First Appellate Court, being the final Court on facts, was under a statutory obligation to independently re-appreciate the evidence and adjudicate the controversy on merits as per Order XLI Rule 24 CPC instead of directing fresh decision on the suit by the learned Trial Court. He submitted that once the entire oral and documentary evidence was already available on record, the learned First Appellate Court ought to have exercised its powers under Section 96 CPC read with Order XLI Rules 24 CPC and decide the appeal finally. [2026:RJ-JP:21965] (6 of 14) [CMA-1388/2018] 3.5 Learned counsel for the appellant also contended that the remand order was passed mechanically and without jurisdiction as there was neither any reversal of findings on a preliminary issue nor any finding that re-trial of the suit was indispensable for effective adjudication of the matter. The remand order being passed, without there being any plausible reasoning, defeats the very object of expeditious adjudication and causes serious prejudice to the parties by prolonging litigation which has already remained pending for considerable time. He submitted that the learned First Appellate Court ought to have avoided multiplicity of proceedings and decided the controversy finally on the basis of the evidence already available on record. 3.6 Learned counsel for the appellant, therefore, prayed that the impugned order dated 05.02.2018 passed by the learned First Appellate Court be quashed and set aside and the matter be remanded back to the learned First Appellate Court itself for decision of the appeal on merits in accordance with law. 4. Per contra, learned counsel for the respondent supported the impugned order dated 05.02.2018 passed by the learned First Appellate Court and submitted that the same has been passed after due appreciation of the material available on record and did not warrant any interference by this Court in the present appeal. 4.1 Learned counsel for the respondent submitted that the suit was filed by the original plaintiff for eviction and recovery of rent on the basis of an alleged oral tenancy for 11 months commencing from 01.05.1988. However, the respondent specifically denied the existence of any such oral tenancy and categorically pleaded that [2026:RJ-JP:21965] (7 of 14) [CMA-1388/2018] the tenancy was existing since the year 1986 under a written rent agreement, which was deliberately withheld by the plaintiff- appellant. Learned counsel placed reliance on the rent receipts produced on record as Ex.D-1 to D-21, thereby pleading continuous tenancy since 1986. However, learned Trial Court failed to properly appreciate the said documentary evidence. 4.2 Learned counsel for the respondent submitted that the learned Trial Court observed that the tenancy for 11 months was unacceptable as the respondent was a tenant prior to 1988. Despite recording such finding, the learned Trial Court decreed the suit without properly adjudicating Issue No.3 relating to tender of rent through money order and refusal thereof by the plaintiff- appellant. Learned counsel thus submitted that the learned Trial Court erred while not deciding the Issue No.3 which was material for adjudication of the controversy involved in the suit. 4.3 Learned counsel for the respondent further submitted that the learned First Appellate Court rightly held that Issue No.3 was not decided in accordance with law and that the documentary evidence produced by the respondent were not duly considered. Thus, the matter was rightly remanded back for fresh decision after proper appreciation of evidence. Further, under Order XIV Rule 2 and Rule 7 CPC, it is mandatory for the Court to frame and decide all material issues arising between the parties and the failure to do so vitiates the judgment and necessitates remand. 4.4 Learned counsel for the respondent thus submitted that the learned Trial Court failed to discharge its statutory obligation by not deciding Issue No.3 on merits and by ignoring the [2026:RJ-JP:21965] (8 of 14) [CMA-1388/2018] documentary evidence available on record. Therefore, the remand order passed by the learned First Appellate Court is correct and does not calls for any interference by this Court. He thus, prayed that the present appeal be dismissed and the impugned order dated 05.02.2018 be affirmed. 4.5 Learned counsel for the respondent relied on the following judgments to buttress his arguments: (i) Sathyanath and Anr. vs Sarojamani; (2022) 7 SCC 644. (ii) Hemlata Eknath Pise vs Shubham Bahu Uddeshiya Sanstha Waddhamna & Ors.; (2026) SCC Online SC 193. (iii) Agricultural Produce Marketing Committee, Bangalore vs State of Karnataka and Ors.; (2022) 7 SCC 796. (iv) Darogi & Ors. Vs Chetram & Ors.; S.B. Civil Writ Petition No. 17904/2018 (Decided on 19.08.2025). 5. Heard learned counsel for the parties and perused the material available on record. 6. Before examining the merits of the controversy, it is necessary to briefly set out the legal framework governing the power of remand in first appeals. 6.1 Order XLI Rule 23 CPC primarily provides that the Appellate Court may remand a case where the suit has been disposed of on a preliminary point and the decree is reversed on appeal, with a direction to re-try the suit. Order XLI Rule 23-A provides for remand where the case was tried upon a wrong basis due to a [2026:RJ-JP:21965] (9 of 14) [CMA-1388/2018] mistake on the question of jurisdiction or otherwise. Order XLI Rule 25 empowers the learned Appellate Court to frame issues and refer them to the learned Trial Court for findings where the original court has omitted to frame or try an issue. These provisions are exhaustive and circumscribe the contours of the power of remand; they do not confer a general or unlimited discretion. 6.2 The law on the subject is now well-settled by a line of authorities of the Hon'ble Supreme Court and this Court. In Ashwin Kumar K. Patel v. Upendra J. Patel, (1999) 3 SCC 161, the Hon'ble Supreme Court held that the learned Appellate Court should not ordinarily remand a case merely because it considers the reasoning of the lower Court to be wrong; if material is available before it, the learned Appellate Court should exercise its own discretion and decide the appeal itself, as remand causes delay and prejudice to the parties. The relevant para of Ashwin Kumar K. Patel (supra) is reproduced herein below: “8. In our view, the High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower court merely because it considered that the reasoning of the lower court in some respects was wrong. Such remand orders lead 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 the 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 [2026:RJ-JP:21965] (10 of 14) [CMA-1388/2018] 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.” 6.3 In Ramakrishnan Kadinhipally & Ors. v. P.T. Karunakaran Nambiar, (2024) 20 SCC 533, the Hon'ble Supreme Court, while examining Order XLI Rules 23, 23-A and 25 CPC, reiterated that a specific case must be made out before a remand is ordered; the Court must record findings to that effect. A mechanical order of remand, without assigning reasons and without bringing the case within the four corners of Order XLI, is wholly impermissible. The Court further emphasised that the High Court in a second appeal cannot upset concurrent findings of fact and remand without addressing the substantial questions of law, and cannot permit amendment of pleadings not sought before the lower Courts. The relevant paragraph of Ramakrishnan (supra) is reproduced herein below: “12.Even for remand, a specific case is to be made out as per Order 41 Rules 23, 23-A and 25 CPC. No findings are recorded by the High Court that the case falls within Order 41 Rules 23, 23-A and 25 CPC and the matter is required to be remanded to the learned trial court on setting aside the concurrent findings of fact recorded by both the courts below. The High Court has mechanically remanded the suit, which is wholly impermissible.” 6.4 Further, in recent judgment of Saseendran & Anr. v. K.M. Cherian (Died) Through Legal Heir & Ors., 2024 SCC OnLine [2026:RJ-JP:21965] (11 of 14) [CMA-1388/2018] SC 583, the Hon'ble Supreme Court held that the learned First Appellate Court, while exercising power under Section 96 CPC, acts as the final Court of fact and law, and an appeal is the continuation of the proceedings. The learned First Appellate Court is therefore duty bound to decide the issues itself or, at best, call for findings from the learned Trial Court under Order XLI Rule 25 CPC. The High Court ought not to set aside the judgment and decree and remand the matter for fresh consideration where the Trial Court has already decided the suit on some issue, leaving other issues unanswered; the proper course is to call for findings on those issues rather than to remand the suit as a whole. Thus, the contention as raised by the learned counsel for the respondent that the learned Trial Court failed to record finding for Issue No.3 was prejudicial is untenable in view of the aforesaid judgment. The relevant paragraphs of Saseendran(supra) are reproduced herein below: “5. Upon hearing the learned counsel appearing for both the sides, we are of the view that the High Court ought not to have set aside the judgment and decree despite finding that the trial Court did not venture into the issues framed, other than the one pertaining to the limitation. It is well open to the First Appellate Court while exercising power under section 96 of the Code of Civil Procedure to act as the final Court of fact and law. An appeal is the continuation of the proceedings. In such view of the matter, it is well open to the High Court to consider the issues both on facts and law either by itself or at best call for such finding from the trial Court. 6. We do not wish to say anything on the discretion to be exercised by the High Court. Suffice it to state that the [2026:RJ-JP:21965] (12 of 14) [CMA-1388/2018] impugned order deserves to be set aside as it is for the High Court to decide all the issues by rendering findings on it, while deciding the appeal on merits.” 7. Applying the aforesaid legal position to the facts of the present case, this Court finds that the impugned order of remand dated 05.02.2018 is not sustainable as there is no finding arrived at by the learned First Appellate Court while remanding the matter under Order XLI CPC. The learned First Appellate Court has not recorded any finding that the suit was decided on a preliminary point under Order XLI Rule 23 CPC, nor that the learned Trial Court proceeded on a wrong basis going to jurisdiction under Rule 23-A CPC. The only conceivable recourse available to the learned First Appellate Court, if it found that Issue No. 3 had not been properly decided, was to call for a finding on that specific issue under Order XLI Rule 25 CPC and not to remand the entire suit for fresh disposal. The impugned order dated 05.02.2018 does not bring itself within the scope of any of the three provisions under Order XLI, rendering it per se illegal. 7.1 This Court is further of the opinion that even if it is accepted, for the sake of argument, that the respondent's submission that Issue No. 3 relating to tender of rent through money order was not properly appreciated, that deficiency, if any, could and ought to have been remedied by the learned First Appellate Court either by deciding that issue itself on the basis of the evidence already on record (Exs.D-1 to D-21 being documents already exhibited), or at worst, by calling for a specific finding from the learned Trial Court on that issue alone under Order XLI Rule 25 CPC. A blanket [2026:RJ-JP:21965] (13 of 14) [CMA-1388/2018] remand directing the entire suit to be re-heard is impermissible moreso in view of provision of Order XLI Rule 24 CPC which is reproduced as under: “24. Where evidence on record sufficient Appellate Court may determine case finally.— Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgement, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.” 7.2 It is a settled position of law that the learned First Appellate Court is the final Court on facts and was thus, under a clear obligation to independently evaluate the evidence on record oral and documentary and return its own findings on each issue. All evidence was already before it. There was no occasion for directing a fresh decision. The impugned remand order, being passed mechanically without any reasoned basis and without reference to the enabling provisions of Order XLI, is unsustainable in law. 7.3 It is pertinent to note that the civil suit was instituted in 1999 and was decreed in 2005 after full trial. The remand order, passed in 2018 nearly nineteen years after the institution of the suit will, if sustained, condemn the parties to yet another round of litigation before the learned Trial Court and inevitably before the learned First Appellate Court thereafter. This would be wholly contrary to the objective of expeditious adjudication and would [2026:RJ-JP:21965] (14 of 14) [CMA-1388/2018] cause manifest prejudice to the appellant, who had succeeded before the learned Trial Court. Remand causes delay and prejudice and ought not to be ordered when the learned Appellate Court can itself decide the matter on available material. 8. In view of the foregoing, this Court holds that the impugned order of remand dated 05.02.2018 passed by the learned First Appellate Court is contrary to law and cannot be sustained. The same is, accordingly, quashed and set aside. Hence, the present civil misc. appeal is allowed. 9. Accordingly, the matter is remitted to the learned Additional District Judge No. 1, Kotputli, with a direction to decide the Civil Appeal No. 3/2006 afresh and on merits. The learned First Appellate Court shall independently re-appreciate the entire evidence on record, adjudicate all issues arising in the appeal. It shall be open to the learned First Appellate Court, if it is of the view that specific findings is required on issue no. 3, to call for such findings from the learned Trial Court under Order XLI Rule 25 CPC alone or to decide itself. 10. The learned First Appellate Court is directed to decide the appeal expeditiously, preferably within a period of six months from the date of receipt of a certified copy of this order, having regard to the fact that the civil suit has been pending, since 1999. 11. Pending application(s), if any, stands disposed of. (BIPIN GUPTA),J Sudha/113