1. After hearing the learned counsel for the parties, I am of the view that the lower Appellate Court erred in law in remanding the case to the trial Court under O. 41, R. 23-A of the C.P.C. after setting aside the judgment and decree of the trial Court without finding fault therein on merits. If from the pleadings of the parties a material issue arises, which is not framed in the trial Court and the Appellate Court feels that the said issue was necessary, then the proper course to be adopted would be to resort to O. 41, R. 25 of the C.P.C. and not to remand the case under R. 23-A of the Code after setting aside the judgment and decree of the trial Court. This is the firm settled rule. Reference be made to Dr. Kishan Singh v. Bachan Singh, Air 1942 Lahore 201 (Column 2 top at page 203). The aforesaid celebrated judgment has throughout been followed by this Court. Reference may also be made to Sheo Datt v. Mst. Sarbati (1970) 72 Pun LR 702 and to some judgments rendered by me. To this extent the order of the lower Appellate Court is erroneous and deserves to be set aside.
2. It is then argued on behalf of the plaintiffs that the trial Court found the sale deed in dispute to be fictitious for 12 detailed reasons and under reason (v), five grounds were found against the vendees. It is further urged that the trial Court had given a categorical finding that issue No. 1 was comprehensive enough and covered the matter whether the sale deed was fictitious and bogus document and the parties had understood issue No. 1 in that sense and had led evidence. He further contends that it is true that the Appellate Court had said that prejudice had been caused to the vendee-defendants but this could be considered only after the entire evidence was appreciated and not without appreciation of evidence. The arguments of the plaintiffs have been refuted by the counsel for the vendee-defendants and he has contended that no specific issue about the genuineness of the sale deed was framed and, therefore, no amount of evidence led on that matter could be looked into by the trial Court. He further maintained that serious prejudice was caused to his clients because in the absence of specific issue, they had no opportunity to lead evidence.
3. After considering the rival arguments of the parties, I am of the view that the parties were fully conscious of the fact that they were to lead evidence in affirmative and rebuttal about the genuineness of the sale deed because this point was specifically raised in the pleadings and controverted by the opposite side and voluminous evidence was led at least on behalf of the vendee-defendants as the onus on the plaintiffs was in the negative form because besides denial, they could lead no evidence. Whole of the evidence is in fact led by the vendees.
4. Faced with this situation, it was aruged on behalf of the vendees by Shri P. S. Jain, Senior Advocate, that the trial Court has observed that the vendees have failed to prove the thumb impression of the vendor on the copy of the sale deed which is affixed in the register of the Sub-Registrar who registered the sale deed and, therefore, the Appellate Court was right in framing the issue and permitting the vendees to lead evidence thereon. If the defendants failed to get the thumb impression compared with the admitted thumb impression of the vendor, it can at best be a case for permission to lead additional evidence and in fact the vendees did pray for permission to lead additional evidence under O. 41, R. 27 of the C.P.C. The lower appellate Court did not consider the case under O. 41, R. 27 of the Code and as held in Municipal Corpn. of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008, the question of permission to lead additional evidence can be considered only after the entire merits of the case are considered by the Appellate Court and then it is found that a case for permission to lead additional evidence has been made out on one or the other ground, then the permission can be granted. The lower Appellate Court did not advert to this aspect of the case.
5. For the reasons recorded above, this appeal is allowed, the order of the lower Appellate Court is set aside and the appeal is restored to its original number to be decided in accordance with law keeping view the observations made above. However, it is made clear that it will be open to the lower Appellate Court to consider the prayer of the vendees for permission to lead additional evidence under O. 41, R. 27 of the C.P.C. in accordance with law. The parties, through their counsel, are directed to appear before the lower Appellate Court on 16-4-1984, However, there will be no order as to costs.
6. Appeal allowed.