AMIRA Vs. CHAMRU

JUDGEMENT

(1.) This Miscellaneous Appeal has been preferred by the Defendants under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') questioning the legality and propriety of the judgment dtd. 25/2/2015 passed by the Additional District Judge, Pratappur, District Surajpur in Civil Appeal No.02-A/2014, by which, the lower appellate Court while reversing the finding of the trial Court passed on 23/1/2014 in Civil Suit No.80-A/2011, has remanded the matter while framing certain issues.

(2.) Shri Ashok Kumar Shukla, learned counsel for the Appellants submits that the judgment under appeal as passed by the lower appellate Court while reversing the judgment and decree of the trial Court is apparently contrary to law. He submits further that the trial Court has decided the suit on all the issues, therefore, in absence of finding regarding insufficiency of the evidence, the Court below ought not to have remanded the matter and instead ought to have exercised its powers provided under Order 41 Rule 24 of CPC. Having failed so, the Court below has committed an illegality in remanding the matter merely on the ground that the trial Court has not considered the evidence in its proper perspective. In support, he placed his reliance upon the decision rendered in the matter of Zarif Ahmad (Dead) through Legal Representatives and another Vs. Mohd. Farooq , 2015 13 SCC 673.

(3.) On the other hand, Ms. Priyanka Mehta, learned counsel for Respondent No. 1 while supporting the judgment impugned submits that while remanding the matter, lower appellate Court has not committed any illegality as certain essential issues were neither framed nor evidence was properly considered by the trial Court. She placed her reliance upon the decision rendered in the matter of J. Balaji Singh Vs. Diwakar Cole and others , 2017 14 SCC 207.