BABULAL AND OTHERS Vs. CHANDA BAI AND OTHERS

JUDGEMENT

(1.) This miscellaneous appeal under Order 43 Rule 1 (u) of the Code of Civil Procedure has been filed assailing the judgment dated 05.05.2005 rendered in First Appeal No.109-A/ 2004 by the First additional Judge to the Court of District Judge, Guna, whereby while allowing the said appeal, the appellate Court without commenting on the merits of the case has set aside the decree of the trial Court, whereby the suit has been dismissed remanding the matter to the trial Court for reconsideration after accepting the application filed in the appellate Court under Order 41 Rule 27 of CPC for production of additional evidence of the plaint in Civil Suit No.15-A/1995 pending before Civil Judge, Class-II, Raghogarh and the map appended therewith and the written statement of defendants no,1, 2,3 and 4 in Civil Suit No.15-A/1995 and the map appended therewith. The appellate Court while passing the impugned judgment has also allowed the application of the plaintiffs under Order 13 Rule 10 of CPC directing summoning of record of the said Civil Suit No.15-A/1995.

(2.) Learned counsel for the appellants has contended that the order of remand is beyond the scope of order 41 Rule 23 and Rule 23-A of CPC. It is further contended on behalf of the appellants that the appellate Court misdirected itself while allowing the application under Order 41 Rule 27 of CPC as there was no occasion to do so since none of the three pre-requisites for invocation of Order 41 Rule 27 of CPC were made out. Rule 23 and Rule 23-A of Order 41 of CPC are reproduced hereunder for convenience :-

(3.) A bare comparative perusal of the provisions of Rule 23 and Rule 23-A of Order 41 of CPC elicit that Rule 23 comes into play when the trial Court rendered a judgment and decree only upon a preliminary point and not on merits of the suit. On the other hand, Rule 23-A occupies the field in respect of all those cases where the suit has not been disposed of merely on the preliminary point, but adopt the same procedure of remand as contained in Rule 23.