RAMESH CHAND SONI Vs. JODH SINGH

JUDGEMENT

(1.) This appeal has been filed against the order dated 15.1.2005 passed by the Additional District Judge, Mandi, whereby the appeal filed by Jodh Singh, defendant was allowed, the judgment and decree dated 19.1.2002 passed by the trial Court were set aside and the case was remanded to the trial Court for recording evidence with regard to the value of the suit property, after affording opportunity to the parties and thereupon to record its reasoning for its finding afresh on Issue No. 5.

(2.) After hearing the learned Counsel in my opinion, it is a fit case where the present appeal must be allowed, the order dated 15.1.2005 passed by the Additional District Judge must be aside and the case remanded to the learned Additional District Judge for fresh decision in accordance with law.

(3.) The plaintiffs had filed a suit for partition by metes and bounds and for injunction. The said suit was decreed by the trial Court and a preliminary decree for partition was passed vide judgment and decree dated 19.1.2002. Aggrieved against the same, Jodh Singh one of the defendants had filed appeal. The learned Additional District Judge found that there was no evidence before the court for taking into consideration the market value of the suit property for which otherwise evidence could be adduced before the trial Court to enable it to return finding on issue No 5 as to whether the suit was not properly valued for the purpose of court fee and jurisdiction. Resultantly, the appeal was allowed, the judgment and decree of the trial court were set aside and the case was remanded to the trial Court for recording evidence with regard to the value of the suit property after affording opportunity to the parties and thereupon to record its reasoning for its finding afresh, on issue No. 5. of the learned Additional District Judge was of the opinion that it was a fit case where evidence was required to be recorded on issue No. 5 with regard to the valuation of the suit for the purpose Of court fee and jurisdiction, the learned Additional District Judge ought to have proceeded under Order 41 Rule 28 CPC by asking the trial Court to take evidence on Issue No. 5 and to send it when taken to the appellate court. Furthermore, on the facts and circumstances of the present case, the learned Additional District Judge could also proceed under Order 41 Rule 28 CPC by asking trial court to record evidence on issue No. 5 and thereafter to return the said evidence to the appellate court together with its finding on issue No. 5 and the reasons therefore. However, there was absolutely no occasion for the learned Additional District Judge to have set aside the judgment and decree of the trial Court and to remand the case to the trial court, especially when in the concluding portion of the judgment dated 15.1.2005 the learned Additional District Judge had directed the trial Court not only to record evidence as to the value of the suit property after affording opportunity but also to record its reasonings for its finding afresh on issue No. 5. This would mean that the learned Additional District Judge did not want the trial court to re -decide the other issues other than issue No. 5. If that be so, there was no occasion for the leaned Additional District Judge to have set aside the judgment and decree of the learned trial court and remand the case to the trial Court.