RAJINDER SINGH Vs. MEHAR SINGH

JUDGEMENT

(1.) THIS appeal is directed against the order of the First Appellate Court whereby after framing additional issues, it set aside the judgment and decree of the trial judge and remanded the case to the trial judge for deciding it afresh after permitting the parties to lead evidence.

(2.) THE facts: -- The appellant (hereinafter referred to as the plaintiff) filed a suit for possession by pre-emption of the suit land. The suit was decreed by the trial judge vide judgment and decree dated December 3, 1987. The vendees assailed the judgment and decree in first appeal before the District Judge. During the pendency of the appeal, an application under Order 6, Rule 17, CPC was moved by the respondents (hereinafter referred to as the defendants) for amendment in the written statement to incorporate the plea that at the time of sale, the land was Banjar Kadim and it was made cultivable by them. The First Appellate Court allowed the amendment of the written statement on payment of Rs. 100/- as costs. Costs were paid and accepted by the counsel for the plaintiff. The First Appellate Court after taking amended written statement on record, framed the following additional issues :- 1 (a) Whether the defendants are entitled to the amount spent for the improvement on the suit land? If so, to what amount? OPD. 2 (b) Whether the defendants are entitled to the amount spent upon obtaining the copy of jamabandi and getting the sale deed scribed and registered ? OPD. The Appellate Judge did not think it advisable to ask for a report from the trial judge on the additional issues framed. He thought it fit to set aside the judgment and decree of the trial court and remand the case to the trial judge for deciding the matter afresh.

(3.) THE entire approach of the learned Appellate Judge does not have a legal sanction behind. The suit was disposed of on merits. The First Appellate Court was well within its jurisdiction to set aside the judgment and decree of the trial judge on merits. He could allow additional evidence to be brought on record to decide any additional issue framed at the first appellate stage. He could even remand the case under Order 41, Rules 23 or 23-A of the Civil Procedure Code but the remand could only be ordered under these provisions. Under Order 41 Rule 23 CPC, where a suit has been disposed of on a preliminary point and the judgment has been reversed by the Appellate Court. It could remand the case for trial on merit. Under Order 41, Rule 23-A, CPC, the Appellate Court where otherwise found it just, may remand the case after setting aside the judgment and decree of the trial judge.