HARI NAHAK Vs. BRUNDABAN DAS

JUDGEMENT

(1.) PLAINTIFFS are the Appellants in this appeal under Order 43, Rule 1 (u) against an order of remand of the 'suit by the appellate Court in exercise of the powers under Order 41, Rule 23 -A, Civil Procedure Code

(2.) IN two recent decisions of this Court reported in Rushi @ Rushi Behera and Anr. v. Madan Behera and Anr. : 61 (1986) C.L T. 30 and in Nishi Swain and Ors. v. Bikala Charan Swain, 62 (1986) C.L.T. 68, I have held that the appellate Court is required to assess the evidence and make endeavour to answer the issues. In case there would be difficulty in doing justice by answering the issues or new issues arise which require more evidence, it may consider to exercise the power under Order 41, Rule 25, C. P. C: first: and where it would be satisfied that Order 41. Rule 25, C.P. C. would not solve the problem, it may exercise the power of remand under Order 41, Rule 23 -A, Civil Procedure Code. In the present case, the appellate Court has not considered the appeal in that light.

(3.) THE second ground on which the appellate Court considered the matter to be remitted back is on the following observation: