LADHA RAM Vs. RAM SARUP

JUDGEMENT

(1.) THIS appeal has been filed against the order of the Additional District Judge, Karnal, dated August 23. 1979.

(2.) BRIEFLY the facts of the case are that the Plaintiff instituted a suit for permanent injunction retraining the Defendant from interferring with his possession regarding two -third share of the plot in dispute. The suit was contested by the Defendant inter alia on the ground that he was in possession of the half of the property and therefore the suit was liable to be dismissed The learned trial court held that the Plaintiff was in possession of half of the property and Defendant was in the other half Consequently, it dismissed the suit. The Plaintiff went up in appeal against the judgment and decree of the trial court, to the Additional District Judge. An application for amendment of the plaint was moved before him wherein it was stated that the Plaintiff was dispossessed regarding some part of the property and he should be allowed to amend the plaint and claim relief for possession regarding that property. Some other amendments by way of clarifications were also sought The learned Additional District Judge allowed the amendments After allowing the amendments he accepted the appeal, set aside the judgment and decree of the case to it (the trial Court) for deciding the matter afresh. The Defendant has come up in revision against the order of the Additional District Judge, to this Court.

(3.) I have heard the learned Counsel for the parties. Mr Sahni learned Counsel for the Respondent, has candidly conceded that the order of the learned Additional District Judge is not correct in this regard I have also examined the matter and find that the order of remand is not in accordance with order 41 Rule 23 A of the Code of Civil Procedure, which provides that where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23. It was the duty of the learned Additional District Judge to have given reasons for setting aside the decree of the trial Court. He has not given any such reason, in such an eventuality, the course which was open to him was to allow the Respondent to file a written statement and to amend the issue/issues Therefore, he could remand the case under Order 41 Rule 25 to the trial Court for recording the evidence on the Additional issue or issues and to have his opinion on the matter. In my view the order of the learned Additional District judge is liable to be set aside.