MONU KUSHWAH Vs. STATE OF M.P.

JUDGEMENT

(1.) HEARD . Learned counsel for the respondent submitted that this appeal has become infructuous as both the parties have led their respective evidence before the trial Court in furtherance of judgment dated 31 -10 -11 passed in Civil Appeal No. 16 -A/10 by learned Third Additional District Judge to the Court of First Additional District Judge, Gwalior by which the case has been remanded by learned lower appellate Court after allowing the application for amendment filed by the respondent and application under Order XLI Rule 27 of CPC filed by the appellant and another application under Order XLI Rule 27 read with section 151 of CPC filed by the respondent.

(2.) The case has been remanded on the ground that after making the amendment and taking the documents on record some evidence is necessary, therefore, the matter is to be decided afresh by learned trial Court.

(3.) LEARNED counsel for the appellant has cited the judgment of this Court on the point that the appeal should be decided on merits as a general rule. Judgment passed in the matter of Harishankar V. Shrilal,, 1993 (II) MPWN (144), also mentions that remand is exception and decision of appeal on merit is a general rule. Further reliance has been placed on the decision of this Court in the matter of Ramesh Singh and others Vs. Vaijanti Bai and others, : 2004 (1) JLJ 391 in which it has been held that whole case need not to be remanded and appellate Court has to decide the appeal on the basis of evidence available on record. Further reliance has been placed over the decision in the matter of Dr. Arvind Vs. Mannalal, : 2009 (4) MPHT 197. Since both the parties have led their respective evidence after amendment in the pleading and produced the additional documents, the judgments cited by learned counsel for the appellants are not applicable.