RATTAN LAL Vs. JAGESHWAR PARSHAD

JUDGEMENT

(1.) The respondent/plaintiff filed a suit for separate possession by partition of the property in dispute. The suit was dismissed by the trial judge vide judgment and decree dated May 17, 1986. The unsuccessful plaintiff challenged the judgment and decree of the trial judge in first appeal. The Appellate Court found that the trial judge illegally closed the evidence of the plaintiff and the evidence sought to be produced was necessary .' Fie lust decision of the case. After so holding it set aside the judgment and decree of the trial judge and remanded the case to the trial judge for fresh decision.

(2.) The approach of the first Appellate Court is wholly erroneous. There was absolutely no justification in law for the Appellate Court to set aside the judgment and decree of the trial Court even if it had come to the conclusion that the evidence of the plaintiff ought not to have been closed under order of the Court and that the plaintiff should have been allowed further opportunity to adduce evidence. It could have examined the evidence found necessary for the just decision of the appeal or in the alternative directed the Subordinate Judge to record that evidence and transmit the same to the former and after receiving the report of the Subordinate Judge, the first Appellate Court could have disposed of the appeal on merits. It was presumptuous on its part that if that evidence had been brought on record it would have changed the fate of the case. This Court has time and again said that the first Appellate Court should be loathe in upsetting the judgment of the trial court on unjustifiable ground more particularly when the parties have been litigating before the trial judge for a couple of years and thereafter the judgment was rendered. The attention of the first Appellate Court is drawn to the provisions of Order 41 rule 25 of Civil Procedure Code. The first Appellate Court if it had found that a particular question of fact was not correctly determined, could ask for a report on that point from the trial judge. Determination of the question of fact has to be made on evidence. If any of the parties did not have sufficient opportunity to lead evidence that party could be allowed to do so and on that limited point, the trial judge could be asked to submit his report.

(3.) For the reasons aforementioned, the appeal succeeds; the judgment and decree of the first Appellate Court are set aside and the appeal is remitted to the Additional District Judge (I), Faridkot for disposal. The Additional District Judge (I) will dispose of the appeal as indicated above. Parties through their counsel are directed to appear before the Additional District Judge (I) on 10.12.1990. No order as to costs. Appeal allowed.