(1.) The instant appeal under Order XLIII Rule 1(U) of the Civil Procedure Code, 1908 (herein-after referred as C.P.C.) has been filed against the Judgment and order dtd. 4/1/2022 passed in Civil Appeal No.110 of 2011; Hari Bux Singh and others versus Prakash Narain and others by the Additional District and Sessions Judge, Court No.1, Sultanpur, by means of which the appeal has been allowed and the Judgment and decree passed by the trial court has been set aside and the matter has been remanded back to the trial court for fresh decision of the suit on merits.
(2.) Learned counsel for the plaintiff-appellants submitted that the defendant-respondents were not present when the case was called for hearing on the date fixed, therefore, the appeal could not have been decided on merit by the lower appellate court and it should have been dismissed under Order XLI Rule 17 of C.P.C. He further submitted that the lower appellate court has decided the civil appeal in violation of Order XLI Rule 31 of C.P.C. without framing points for determination and recording the findings thereon.
(3.) He further submitted that the plea of limitation taken by the defendant-respondents was in the knowledge of the parties and accordingly the evidence was adduced which shows that the suit was within limitation, therefore, merely because any issue was not framed in regard to limitation it cannot be a ground for setting aside the Judgment and decree passed by the trial court and remanding the matter. It was further submitted that no objection to the commission report was filed by the defendant-respondents, therefore, there was no dispute in regard to the commission report and if court would have been dissatisfied with the report of the commissioner, it could have directed further inquiry in the matter or examined the commissioner, but it was not done, therefore, it can also not be a ground for remand. Thus submission was that the impugned Judgment and order is not sustainable in the eyes of law and it is liable to be set aside. He relied on the following case laws: