JAMUNA PRASAD Vs. HARILAL

JUDGEMENT

(1.) Heard Shri Rajesh Kumar, learned counsel for the defendant/appellant and Shri Kaushal Tiwari, learned counsel for the plaintiff/respondent.

(2.) This first appeal from order has been preferred under Order XLI, Rule 1(u) of Civil Procedure Code, 1908 (hereinafter referred to as "C.P.C.") against the judgment and order dated 10.02.2022 passed in Civil Appeal No. 11 of 2021; Harilal v. Jamuna Prasad by District Judge, Ambedkar Nagar, by means of which the appeal filed by the plaintiff/respondent has been allowed and judgment and order dated 05.12.2019 passed in Regular Suit No. 476 of 1997; Harilal v. Jamuna Prasad by Civil Judge, Junior Division, Ambedkar Nagar has been set aside and the case has been remanded to the trial court to decide afresh in accordance with law and the observations made in the same.

(3.) Learned counsel for the appellant submits that the first appellate court has wrongly and illegally allowed and remanded the matter for deciding afresh, whereas all the pleadings, evidence and material on record were before the first appellate court and the first appellate court has recorded findings on the basis of material on record and remanded the matter only on the ground that the evidence has properly not been appreciated, while the first appellate court has to decide the appeal considering the pleadings, evidence and material on record as trial court and it could have decided the case finally instead of reminding the matter. Thus, Learned counsel for the appellant submits that the impugned judgment and order is not sustainable in the eyes of law and is liable to be set aside and the matter may be remanded to the first appellate court to decide the appeal on merit in accordance with law. He relies on Shivakumar and others v. Sharanbasappa and others AIR 2020 SC 3102=2020 LawSuit(SC) 345.