BABAJI PRADHAN Vs. BALUNKI PRADHAN AND OTHERS

JUDGEMENT

(1.) This is an appeal under Order-43, Rule 1 (u), Code of Civil Procedure, 1908 challenging the order of remand passed by the learned lower appellate court setting aside the judgment and decree passed by the learned Civil Judge (Senior Division), Puri in C.S. No.64 of 2003 to decide the suit afresh on the existing evidence as well as by taking additional evidence on the additional issues by the lower appellate court.

(2.) The Respondent No.1 is the plaintiff, Appellant is defendant No.1 and Respondent Nos.2 to 7 are D-2 to D-7 before the learned trial court. To avoid unnecessary confusion the parties hereinafter will be referred to as they are arrayed in the plaint. The plaintiff filed the suit for partition, declaration and permanent injunction with other consequential reliefs. The learned lower court framed issues, examined witnesses and after analyzing the evidence placed before it, dismissed the suit. Against the judgment and decree of the learned trial court, the plaintiff preferred RFA No.11/66 of 2006 before the learned lower appellate court. Being of the view that the learned trial court did not take into consideration many points on the existing issues and many points on which issues were not framed, the learned lower appellate court framed as many as six additional issues and passed the impugned order.

(3.) The appellant being aggrieved, challenges the impugned order on the grounds that the trial court having taken into account the real controversy and having considered the materials on record in details, mere non-framing of specific issues does not affect the merit of its decision, and that even if the lower appellate court found that the reasons given by the learned trial court were not adequate, the former should, have, instead of remanding the matter, decided the additional issues itself. Learned counsel for the respondents however submits that since the remand is under Order 41 Rule 25 of C.P.C., the impugned order is not appealable.