ORDER
D.S.R. Varma, J.
1. This Civil Revision Petition is filed challenging the order and decree, dated 02-12-2002, passed by the Senior Civil Judge, Addanki, disposing of the application in I.A. No. 427 of 2002 in O.S. No. 37 of 1985, filed under Order-41 Rule-25 of the Code of Civil Procedure.
2. Petitioners are defendants and respondents are plaintiffs. The suit was filed for recovery of possession.
3. For the sake of convenience, parties will be referred to as arrayed in the suit.
4. Initially, the suit was decreed in favour of the plaintiffs. The matter was carried in appeal in A.S. No. 67 of 1995 and the lower appellate court having gone into the entire evidence on record remanded the matter for fresh disposal with a direction to the trial court to frame an additional issue.
5. It is to be noted that though the suit was filed for recovery of possession, both the parties have relied on independent wills. The will relied on by the plaintiffs is dated 05-12-1979 and the will relied on by the defendants is dated 25-01-1980. It appears that though there is reference of these two wills in the pleadings, the trial court passed the judgment and decree, dated 10-04-1985, in favour of the plaintiffs without any reference to those documents or any finding. The lower appellate court having found fault with the judgment and decree passed by the trial court only to the limited extent of not framing proper issues as regards the genuineness of the said two wills relied on by the plaintiffs and defendants, remanded the matter for fresh disposal with a direction to the trial court to frame an additional issue.
6. The relevant portion of the judgment of the lower appellate court at Para Nos-21 and 22 are as under:
Para No-21: 'On the above circumstances, without going into the merits of the appeal, another aspect I feel it is just and proper to remand the suit to the lower court for framing additional issue on the aspect of genuineness of the wills set up by both parties and to receive the documents as additional evidence subject to proof and relevancy by allowing the parties to adduce evidence on the above aspect.'
Para No-22:
'In the result, the appeal is allowed without prejudice to the contentions of both parties in the suit. The suit under appeal is remanded to the lower court for fresh disposal by framing additional issue on the aspect of validity and bindingness of the wills set up by both parties and to give opportunity to both parties to adduce additional evidence. The lower court shall dispose of the suit within three months from the date of receipt of records.'
7. After remanding the matter, the trial court, in compliance with the directions issued by the lower appellate court, framed the following additional issues:
(1). Whether the registered will, dated 05-12-1979, pleaded by the plaintiffs is true, valid and binding on the defendants?
(2). Whether the will, dated 25-01-1980, pleaded by the defendant No-2 is true, valid and binding on the plaintiffs?
8. It is to be further noted that in the original suit, the trial court framed he following issues:
(1). Whether the plaintiff is entitled for possession of suit A schedule property?
(2). Whether the plaintiff is entitled to past profits for the year 1982 to 1985? If so, to what rate?
(3). Whether the adoption pleaded by defendant No-2 is true, valid and binding on the plaintiff?
(4). To what relief?
9. Now, the plaintiffs have filed the present application under Order-41 Rule-25 of the Code of Civil Procedure to decide the scope of the order of the lower appellate court remanding the matter through judgment, dated 29-11-2000, with regard to the nature of evidence to be let in by both the parties.
10. From the above, it is clear that originally the suit was tried and in compliance of the judgment, dated 29-11-2000, of the lower appellate court, the trial court framed the additional issues and proceeded with the trial of the suit afresh only with regard to the genuineness or otherwise of the wills set up by the plaintiffs and the defendants.
11. Learned counsel for the defendants contends that the defendants have filed as many as 25 documents and all those documents have to be received as additional evidence and the defendants must be given an opportunity to adduce evidence before the trial court.
12. It appears that an objection was raised by the plaintiffs for receiving the said documents filed by the defendants.
13. Further, it was specifically contended by the plaintiffs that upon such filing of application by the defendants as directed by the lower appellate court, the trial court has to go into the aspect of genuineness or otherwise of the wills filed by them and the defendants have to lead evidence. That contention was accepted by the trial court and in the result the trial court wanted to proceed with the trial of the suit afresh, only with regard to the genuineness or otherwise of the disputed wills, already referred to above, and also with regard to additional issues, which were framed as directed by the lower appellate court.
14. A perusal of the directions issued by the lower appellate court, as recorded above, would only reveal that the lower appellate court is very much clear in its mind that the trial court did not frame any issue on the aspect of validity and genuineness of the wills set up by both the parties and consequently directed the trial court to try the suit afresh after framing necessary additional issue as regards the genuineness or otherwise of the wills set up by both the parties.
15. Further, from the language of the lower appellate court, I do not find any ambiguity whatsoever. The lower appellate court had restricted fresh trial by the trial court only to the extent of leading evidence as regards the additional issues as directed to be framed with regard to the wills set up by both parties only and nothing more.
16. In this context, it is necessary to refer to Rule-23 of Order-41 of the Code of Civil Procedure, which is as under:
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, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and he evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
Rule-23-A: 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.
Where evidence on record sufficient, Appellate Court may determine case finally.'
17. From a reading of the above provision, it is clear that the lower appellate court has power to remand the case with a direction to the trial court upon the issue or issues that are necessary to be framed. IT is to be further noted that the said provision makes it clear that the evidence (if any) recorded during the original trial of the suit subject to all just exceptions, be evidence during the trial after remand, and the trial court shall try the suit with reference to the issues that are directed to be framed.
18. The scope of Order-41 Rule-25 of the Code of Civil Procedure is altogether different. The jurisdiction vested with the appellate court under Order Order-41 Rule-25 of the Code of Civil Procedure is to the effect that if the appellate court wants to proceed with the appeal and decide itself, then it can frame such additional issues and refer the matter back to the trial court to record evidence on those issues and it is for the trial court to record evidence only on that aspect and send the entire record to the appellate court with which such jurisdiction is vested, together with its findings thereon and the reasons therefor within such time as may be fixed by the appellate court. In other words, the appellate court had the jurisdiction to remand the matter both under Rule-23 and Rule-25 of Order-41 of the Code of Civil Procedure depending upon the facts and circumstances of the case and as deemed necessary.
19. In the instant case, the intention of the lower appellate court is clear that it required the trial court to frame additional issues on the aspect of the wills relied upon by both the parties and further required the trial court to receive those documents specifically referred to (wills) and permit the parties to adduce evidence only on that aspect and the other evidence as contemplated under Rule-23 of Order-41 of the Code of Civil Procedure shall remain on record.
20. It is to be noted that the additional issues have also been framed already in compliance with the directions of the lower appellate court.
21. Now, the only question that remains before the trial court is to go into those issues, which were directed to be framed, and not other than the two wills relied on by the parties. The other evidence shall remain on record and the trial is now going to pass the judgment and decree taking into account the evidence on record as regards the disputed wills relied on by both the parties and the evidence on that aspect.
22. For the foregoing reasons, I do not find any reason to interfere with the impugned order, dated 02-12-2002, passed by the trial court. Therefore, the Civil Revision Petition is devoid of merit and the same is liable to be dismissed.
23. Accordingly, the Civil Revision Petition is dismissed at the stage of admission. However, there shall be no order as to costs.