N.N. Mithal, J.
1. This is an appeal against the order of remand in a suit filed on the allegations that the property had been partitioned in a particular manner but still the defendants were trying to interfere with his rights. The defence plea was that though partition had taken place, it was neither in the manner stated by the plaintiff nor at the alleged time. It was contended that partition had taken place at a different time and manner. Although the fact of partition was admitted by both the parties yet the time and manner of partition was disputed. The trial Court decreed the suit. In appeal, the defendant-appellants sought permission to file as many as nine documents. In spite of objections by the plaintiff the court admitted these documents in evidence and proceeded to remand the matter to the trial Courtwith directions to frame additional issues in the light of the documents filed and to decide the matter afresh after affording an opportunity to the parties to lead evidence.
2. Sri Ravi Kant, learned counsel for the appellant has vehemently urged that neither additional evidence should have been admitted by the court below nor order of remand could be made merely on the around that some additional evidence was permitted to be filed in appeal. It is not disputed that an order permitting additional evidence under Order 41. Rule 27. C.P.C. is not appealable. The question naturally arises as to whether while assailing the correctness of an order of remand, a party could also question the correctness or legality of the order permitting additional evidence? Order 43, Rule 1 (u) provides foran appeal against an order of remand passed under Rule 23 or Rule 23 (A) of Order 41 only in those cases where an appeal would lie from the decree of the Appellate Court. Order 41. Rule 23 deals with remand where the suit had been decided on a preliminary point and such a decision is reversed in appeal. An amendment made in this Court empowers the Appellate Court to remand a case even in those cases where the appellate Court, while reversing or setting aside the decree under appeal considers it necessary, in the interest of justice to pass such an order. Adopting this amendment Rule 23 (A) was introduced by Act 104 of 1976 which now provides as under-
'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 retrial is considered, necessary, the appellate Court shall have the same powers as it has under Rule 23'.
3. In an appeal under Order 43. Rule 1(u), C.P.C., therefore, what the courtis required to examine is the correctness or otherwise of the order of remand, be it under Rule 23 as amended in this High Court) or under Rule 23-A. It is urged for the appellant that the scope of appeal under Clause (u) is very wide and it would also cover those matters on which the first appellate Court may have recorded its findings. If this argument were to be accepted it would result in converting the appeal from an order into one in the nature of a second appeal. An appeal under Clause (u) inscope is confined to the consideration of those matters only which promoted the lower appellate Court to remand the suit and which formed the very foundation of such an order. It is true that the scope of an appeal against an order of remand cannot also be narrowed down so much as to confine it only to the order itself and exclude all those factors and circumstances which may have prompted the court below to remand the case. For example if it becomes necessary to allow amendment due to some enactment or other intervening events requiring additional pleadings from the other side which give rise to additional Issues. In such a situation the appellate Court may find it necessary to remand the case to enable the parties to complete their pleadings and raise additional issues for decision. The party aggrieved by such an order of remand may in an appeal under Clause (u) of Order 43, Rule 1 be allowed to assail the legality of the order allowing the amendment also if it was found to be so intricately inter-twined with the order of remandthat it renders it impossible to consider the remand order in isolation. Where such orders can be considered separately the order of remand alone should he considered by the Court. In that event, the scope of appeal under Clause (u) will be confined to consideration of such material only on the basis of which the order of remand was passed.
4. An order of remand does not necessarily submerge or dissolve in the decree passed finally. A separate right of appeal has been given against such an order and the propriety or correctness of such an order or findings on which it is based alone can be canvassed in appeal. According to Section 105(2). C.P.C. any party aggrieved by an order of remand is precluded from disputing its correctness subsequently. Thus if an appeal lies from the decree of the court passing the remand order but no appeal was taken, parties are precluded from questioning the correctness of the order of remand later on in an appeal from the final decision. Reference in this connection was made to AIR 1969 Mad 248 (Kaluvaroya Pillai v. Ganesa Pandithan). In that case a decision on merit was given by the trial Court and on appealonly some of the findings were endorsed by the appellate Court while others were reversed. The matter was remanded to the trial Court only to determine the amount of mesne profits payable with a direction to allow suitable amendment in the plaint. On appeal the legal contention addressed before the High Court was whether the appellant could canvass against all the findings of fact arrived at by the appellate Court or it had to confine to those findings of fact only which related to and circumscribed the order of remand. It was held that the appellant could not canvass against all the findings and in anneal against, an order of remand only those questions could be canvassed which related to or circumscribed the order of remand. That also appears to be the correct position of law. In an appeal against an order of remand its scope must be limited to only those matters which are directly related to or touch upon the validity of the remand order.
5. In the present case the order of remand has been passed only on account of admission of additional evidence in appeal. No other reason for remanding the case has been ascribed by the Court. Therefore, it would be within the scope of this appeal to consider the correctness of that order also.
6. In the light of the submissions that have been made before me. I find that the court below was justified in accepting these documents even at the appellate stage. Some of the documents are inter parties and although these may have been within the knowledge of the defendant vet these could not be relied upon as the matter had not been decided finally. When the appeal was decided in May, 1974 then only an occasion to file them could arise. May be some of these papers could have been filed in the trial Court itself also but the court be-low has assigned good reasons for admitting them at that stage. The counterfoils had allegedly been misplaced or lost when the matter was pending in the trial court and were found only during the pendency of the appeal. The court has believed the defendants' version and therefore permitted admission thereof.
7. On an overall consideration of these matters I consider that the court had properly exercised its discretion in admitting these papers and there is no-thing to disagree with it.
8. It is in these circumstances that the remand order should now be considered. It has been vehemently urged that even though additional evidencewas permitted this could be no reason for setting aside all the finding of the trial Court. It is urged that the court should have either recorded the additional evidence itself or got this done by the trial Court before deciding the matter on merits. It has been repeatedly held by this court that the power of remand should not be utilised as a matter of course and the same must always be avoided if the court can itself record necessary evidence or even by getting the same recorded by the trial Court. This saves both time and expense to the parties besides cutting short the litigation to some extent. Wherever legally permissible the court must first try to use Rule 25 of Order 41. C.P.C. instead of resorting to the more drastic remedy of remand by which other findings also are toppled unnecessarily. This apparently has not been done in the present case. Most of the papers admitted in appeal were certified copies of judicial records which may not have required formal proof. Only a few documents might have decided proof and for this the appellate Court itself could have re-corded the evidence. Even if sending down the case was found necessary for recording the evidence only so much of the matter should have been remitted and the appeal could have been disposed of on merits thereafter. In this view of the matter I am satisfied that the order of remand in this case was improper.
9. In the result the appeal succeeds and is hereby allowed. The order of remand only is set aside and the matter is now sent down to the lower appellate Court for deciding the same afresh in the manner indicated earlier. The parties shall bear their own costs in the appeal.