SURESHBHAI MANGALDAS MODI Vs. RAJUBHAI SHANABHAI GOHIL

JUDGEMENT

(1.) The appellant has preferred this Appeal from Order under Section 104 read with Order XLIII, Rule 1 (r) of the Code of Civil Procedure against the judgment and decree dated 30.7.2016 rendered by learned Additional District Judge in Regular Civil Application No.47 of 2013, whereby learned Additional District Judge has set aside the judgment and decree passed by learned 8th Additional Senior Civil Judge, Bharuch, dated 1.5.2013 passed in Special Civil Suit No.103 of 2005 with a direction to consider the evidence produced by the defendant and also to consider the evidence produced by the plaintiff thereon and to decide the suit afresh.

(2.) It is the contention of the appellant, who is the original plaintiff, that he has preferred Special Civil Suit No.103 of 2005 before learned Principal Civil Judge, Bharuch, against the respondents herein which came to be partly decreed in favour of him and the respondents were directed to give vacant and peaceful possession of the suit property to him. It is contended that being aggrieved with the said judgment and decree, the respondent preferred Regular Civil Application No.47 of 2013 before District Court, Bharuch, wherein by the impugned judgment and decree dated 30.7.2016, learned appellate Court has set aside the trial Court decree and remanded the matter to the trial Court. It is contended that the appellate Court ought to have considered the evidence on record and decided the appeal itself. It is contended that the appellate Court has erred in interpreting the contents of the challan produced at Exh.21, which was not challenged by the respondent. It is also contended that the appellate Court has misread the documentary evidence and has wrongly come to the conclusion that the respondent has produced document at Exh.58, which has not been considered by the trial Court. It is also contended that the impugned judgment and order of the first appellate Court is without any justifiable reasons and it is contrary to the Order XLI, Rule 23 of the Code of Civil Procedure. It is prayed to set aside the impugned judgment and decree of the first appellate Court.

(3.) Heard learned advocate Mr.Archit P. Jani for the appellant and Mr.Chirag Patel, learned advocate for the respondents.