THULARAM PRASAD Vs. N. SURENDRAN

JUDGEMENT

(1.) The defendants are the appellants in the present appeals. The respondents/plaintiffs instituted a suit for declaration and permanent injunction. Admittedly, the suit was decreed partly. The relief relating to the declaration was rejected and the relief of permanent injunction was granted. Thus, two appeals were filed in respect of the judgment and decree passed by the trial Court in O.S.No.241 of 2009.

(2.) The First Appellate Court adjudicated the issues with reference to the findings of the trial Court and thereafter arrived a conclusion that the vital document 'Will' was not produced before the trial Court by the parties and the said 'Will' is produced before the First Appellate Court as additional document by the parties and such an additional document was accepted by the First Appellate Court. Thus, the matter is to be remanded back to the trial Court for examination of witness with reference to the 'Will' and accordingly set aide the judgment and decree passed by the trial Court in the suit.

(3.) The question raised is whether the remand is required at all in such circumstances when the additional document is filed before the First Appellate Court, more specifically, in the present case is the 'Will'. The procedure relating to the appeals from the original decrees is provided in Order 41 of CPC, 1908. Various provisions relating to hearing of the appeal, remand of case, remitting the issue for trial, production of additional evidence in the appellate court are contained in Rules 16 to 29 under the sub-heading 'procedure on hearing'. Rules 23,23A, 24 and 25 of Order 41 CPC read as under: