SURAJ BHAN Vs. GRAM PANCHAYAT JUPPA KHURD

JUDGEMENT

(1.) THIS second appeal from Order is directed against the judgment of the learned Additional District Judge, Bhiwani, dated 16.2.2001. Vide impugned order, the learned first appellate Court passed the following order :-

(2.) IT is conceded before this Court, by the learned counsel appearing for the respective parties that the learned first appellate Court did not set aside or even doubted the findings recorded by the learned trial Court on all other issues. The learned trial Court vide its order dated 24.5.1993 framed as many as 7 issues. All the 7 issues had been decided on merits and taking into consideration the documentary as well as oral evidence led by the parties with the exceptions of issue No. 3. Issue No. 3 relates to the jurisdiction of the civil Court. The learned first appellate Court could not have remanded the suit for a fresh trial without setting aside the findings recorded by the learned trial Court on all other issues. The bare reading of the impugned order shows that the learned first appellate Court neither intended nor actually set aside the findings on other issues and he was impressed only with one fact that learned trial Court has not recorded finding on issue No. 3. The learned first appellate Court could have decided issue No. 3 itself or would have called for the report from the learned trial Court. This case was certainly not one where the learned first appellate Court should have exercised its jurisdiction under Order 41 Rule 23 of the Code of Civil Procedure for remanding the case for a fresh trial.

(3.) IN view of the above, judgment of the first appellate Court is set aside. It is directed that learned trial Court shall submit its report on issue No. 3 within three months from today and send the same to the first appellate Court for disposal of appeal in accordance with law. The first appellate Court shall retain the appeal filed before it. Appeal is accordingly disposed of. Appeal disposed of.