RAM NARAIN Vs. VIRENDRA SINGH AND OTHERS

JUDGEMENT

(1.) Heard learned counsel for the parties and perused the judgment of the trial court as well as the lower appellate court. Counsel agreed that the appeal itself may be disposed of at the stage of admission.

(2.) At the appellate stage certain amendments were sought in the written statement and on the basis of fresh pleadings three new Issues were struck off. The lower appellate court has mentioned that the parties had agreed that in view of amended pleadings fresh issues were necessary and these may be remitted to the trial court for recording evidence. The lower appellate court, however, remanded the suit after setting aside the judgment and decree of the trial court. It further directed the trial court to decide the suit afresh in the light of the evidence of the parties. This later part of the order of the lower appellate court is not justified under any of the provisions of or. 41, Rules 23, 23-A or 25. As a matter of fact when fresh issues had been framed on the basis of amended pleadings of the parties the appellate court had two options before it. Firstly, either it could record the evidence on the said issues and to decide the appeal on merit or, secondly, it could frame issues and remit the same for recording the evidence in the trial court and for recording its findings thereon. After the findings were received by the appellate court it could decide the appeal on merits. However, the appellate court could take resort to remanded the suit only when it was of the opinion that the appeal was to be allowed and the findings of the trial court were to be set aside and where the re-trial was deemed necessary. In this case the lower appellate court has not recorded any findings in this regard. In the circumstances, the order under appeal suffers from legal infirmity and is liable to be set aside.

(3.) In the result the appeal is allowed. The order under appeal is set aside. Learned counsel for the parties are agreed that now the issues which have been framed by the lower appellate court only may be sent down to the trial court for recording the evidence and findings thereon after affording opportunity to the parties to lead evidence on these issues. After the findings are received by the lower appellate court it shall decide the appeal on merits. Orders accordingly no order as to costs.