1. The original suit out of the proceedings in which these two civil revision petitions arise is No. 893 of 1959 on Page: 267the file of the Munsiff at Nanjangud. The suit was for recovery of possession, with mesne profits and other incidental reliefs, of two items of immoveable properties. The Munsif framed eight issues, took evidence and made a decree in favour of the plaintiff only in respect of one half of the first item and dismissed the suit as to the rest of the claim. Both sides being dissatisfied with the decision appealed to the Civil Judge at Mysore Regular Appeal No. 152/61 is by the plaintiff and Regular Appeal No. 155/61 that of the defendant. One of the grounds raised by the plaintiff-appellant was that the Munsif has failed to raise the necessary issues, in the suit. An interlocutory application also appears to have been made for amendment of the plaint. The Civil Judge took up the interlocutory application for consideration and allowed the prayer therein for amendment. He also framed an additional issue as agreed to by both the parties. His order on the appeal is said to be an order directing the trial court to take evidence and record findings on the additional issues and return the same to the appellate court. The findings were returned by the Munsiff by the end of 1963.

2. By that time, another officer was presiding as Civil Judge at the court in Mysore. He has passed a common order in both the appeals against which these two civil revision petitions are presented by the defendants. It appears from the judgment that only 2 points taken up for consideration were: (1) Whether proper and necessary issues have not been framed by the trial Court? and (2) if so, whether the suit should be remanded to the trial court for fresh disposal. His conclusion was that the entire issues should be recast. He framed seventeen fresh issues and took the view that the entire suit should be remanded for fresh disposal on the basis of the said fresh issues. He also directed the trial court to give fresh opportunity to both sides to adduce evidence on the issues framed and to dispose of the suits afresh according to law. The petitioners complain that this was not a proper disposal of the appeals at all and that the considerations adverted to by the Civil Judge in his judgment do not furnish sufficient ground for a remand of the suit. It is pointed out that on the former occasion the parties themselves consented to and were satisfied by the framing of one additional issue and that pursuant to the remand made on the first occasion some additional evidence had also been brought on record.

3. The first objection raised on behalf of the respondent-plaintiff is that these revision petitions are not maintainable. The learned counsel for the petitioner states that revision petitions came to be filed because in the concluding portion of his appellate judgment, the Civil Judge has stated that the suit was being remanded under Section 151 of the Code of Civil Procedure.

4. It appears to me that the reference to section 151, Civil Procedure Code, is mistaken. As long ago as in 1959, this High Court had amended Rule 23 of Order 41 of the Code of Civil Procedure bringing within its scope the power to remand not only in cases where the trial court had disposed of the suit on a preliminary issue but also in all cases in which the appellate court while setting aside the decree of the trial court considers it necessary in the interest of justice to remand the case. Hence, the source of the power to make a remand order is Rule 23 of Order 41 of the Civil Procedure Code. The mistaken reference to Section 151 of the Code of Civil Procedure does not make any difference to the substance of the matter.

5. What follows from this conclusion is that the order was clearly appealable as an order under clause (u) of Rule 1 of Order 43 of the Code of Civil Procedure. Hence, the proceeding before this court should have been not a revision petition but an appeal. As, however, such an appeal is also one which can be heard and disposed of by a single judge under section 9 if the Mysore High Court Act, 1961 and as the maximum court fee payable in respect of such an appeal namely. Rs. 10/- has been paid on each of these two revision petitions, the learned counsel for the petitioner requests that I may treat these, revision petitions as appeals under R. 1(u) of Order 43 of the Code of Civil Procedure and dispose of the same on merits.

6. It appears to me, the request made is in the circumstances a reasonable one and that it would be the interest of both the parties to treat these matters as Miscellaneous Appeals and to dispose of them.

7. I have, therefore, heard arguments in this matter as if these were appeals without confining the arguments of learned counsel to the limited scope of section 115 of the Code of Civil Procedure.

8. The first thing that strikes me in this matter is that both the orders of remand made by the Presiding Officers of the Civil Judge's court at Mysore in this matter an order which could not have been properly passed in the light of the relevant provisions of the Code of Civil Procedure.

9. An order of remand by a First Appellate court is and should be an order pursuant to a conclusion arrived at by the first appellate court after a final hearing of the appeal. Before the first appellate court can make an order of remand, the relevant rule requires that it should set aside the order of the trial court and no appellate court can set aside the order of the trial court without examining the case on merits. Even when the rule empowers the appellate court to remand any case where it considers it necessary in the interest of Page: 268justice to make an order of remand the opinion that the interest of justice do require or call for such an order is an opinion which can be entertained only after an examination of the merits of the case. The tentative opinion on that matter without examining the full records of the case cannot in any sense be regarded as a sound conclusion that interest of justice do require that such an order should be passed.

10. Although the appellate court does have the power in apporpriate circumstances to permit either of the parties before it to amend his pleading the question whether such an amendment is necessary is also a question which can arise only as a consequence of and therefore subsequent in point of time to an examination of the records of the trial court and the merits of the controversy. It should be remembered that when the first appellate court hears an appeal, there has already been a decision by the trial court, and the examination of the matter by the appellate court is with a view to see whether the trial court's decree suffers from any error calling for correction by the appellate court. If the order of the trial court is not shown to be erroneous in any regard, the appellate court will be wrong in interfering with it. To permit the parties at the appellate stage to amend the pleadings without first convincing the appellate court that there is an error in the decree of the trial court would be to relieve them from the consequences of the trial court's order which is binding on them until it is set aside without examining the merits of the case and without coming to a conclusion that the said order suffers from any error. The type of error which may persuade the appellate court to permit the parties to amend the pleadings is an error which is initially that of the parties themselves because having invited the decision of the trial court upon pleadings originally presented by them, it is not open to them straightway to tell the appellate court that they be relieved by an order passed by the trial court in original pleadings and be permitted to invite its decision upon amended pleadings.

11. Even in cases where the appellate court comes to the conclusion that any fresh issues arise either on the pleadings as originally presented or upon pleadings as amended with its leave or order, it is not, in all cases, inevitable to make an order of remand an amendment may also be merely clarificatory in nature. The framing of issues by the appellate court may also be in the nature of clarification or may result in a larger number of issues than framed by the trial court without making any particular difference to the substance of the matter or the nature of the controversy or the availability of the evidence already on record for the decision of the issues as reframed. Wherever there is sufficient evidence on record to enable the appellate court to come to a just and satisfactory conclusion on the points in controversy, there will be no ground whatever for making an order of remand.

12. The second order of the Civil Judge framing seventeen fresh issues, though elaborate and detailed in its discussion, does not indicate whether the civil judge has or has not examined the question whether the issues as reframed add anything to the controversy reflected by the issues already framed by the Munsif or whether the controversy now expressed in the shape of seventeen issues is not capable of decision on the evidence already placed on record.

13. From the fact that the Civil Judge had framed only two points for consideration which I have copied above, it would appear that he has confined his attention only to those points. It is a reasonable conclusion, therefore, that the ultimate decision of the Civil Judge does not proceed upon any opinion or impression formed by him after an examination of the evidence or after hearing arguments based on the evidence. If so, his opinion that additional evidence may be necessary for disposal of the suit or that the parties might have been misled in the matter of leading evidence is an opinion which is not supportable on the discussion contained in his judgment or on any other sound inference based on an examination of the evidence.

14. I have, therefore, no alternative but to direct the Civil Judge to examine the evidence and hear arguments on evidence before he makes up his mind to make an order of remand. It may be that after hearing the evidence he may find it possible to dispose of the entire matter even on the basis of the new issues without doing any harm to interests of justice. It may be that at the end of the examination of evidence in the light of the arguments he may find that some of the issues may not require consideration or elaborate consideration. As these matters do not appear to have been adverted to by the Civil Judge, it is now necessary to call upon him to do so.

15. I do not, however interfere with the issues as framed by him. I leave to him to examine how many of them really require the recording of a separate finding and how many of them may be omitted without affecting the consideration of the case on merits. With these directions, I set aside the order of remand made by the Civil Judge dated 22nd of July 1965 in Regular Appeal Nos. 152 and 155 of 1961 on his file and direct him to hear and dispose of the appeals in the light of the observations contained in this order and in accordance with law.

16. The Court fee paid on these revision petitions now converted into appeals Page: 269will be refunded to the petitioner, i.e the appellant. Parties will bear their own costs in this court.

MBR/D.V.C

Order accordingly.