CHHOTE LAL Vs. PIARE LAL (DECEASED) THROUGH LRS

JUDGEMENT

(1.) Plaintiff, who was successful in getting preliminary decree for partition with regard to a shop vide judgment dated 4th Aug., 1988, has come in revision against the order dated 19th Jan., 1989, vide which the first Appellate Court in an appeal, preferred by the defendant, set aside the judgment and decree passed by the trial Court and remanded the case to the trial Court only on the ground that additional evidence had been allowed by the said Court. Mr. Hemant Kumar, appearing for the petitioner contends that under the provisions of Order 41, Rule 23-A, C.P.C., the only course open to the Appellate in such a situation was either to record additional evidence itself or to ask for report from the trial Court. In support of his contention, he has relied upon Shmt.Dhapan Vs. Vijay Singh and others, 1980 I : L.R. 211. Mr.Ahluwalia, appearing for the respondent has endeavoured me to take a different view, but it is well settled law that after allowing additional evidence, the first Appellate Court has either to ask for a report from the trial Court or to record additional evidence itself.

(2.) In view of what has been said above, the order dated 19th Jan., 1989 passed by the Additional District Judge, Bhiwani, is set aside. This appeal is allowed with a direction that the appeal preferred by Piare Lai, who is now succeeded by his legal representatives, shall be disposed of by the first Appellate Court and itis rather obvious that the evidence of the parties, which has already been recorded, would be taken into consideration. Mr.Ahluwalia contends that inasmuch as there is real apprehension in the mind of his client that the appellant would sell the property during the pendency of the appeal, suffice it to say that if an application for injunction is made before the first Appellate Court, the same shall be expeditiously decided by the Appellate Court. It is, however, made clear that the appellant would not alienate the property in any manner for fifteen days from today, within which time the respondent must make an application for grant of stay before the Appellate Court. Record of this case be sent to the first Appellate Court forthwith. Parties through counsel are directed to appear before the first Appellate Court on 11 I h Nov., 1991. This appeal stands disposed of in the manner, indicated above. Ordered accordingly.