BISHAMBHAR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS Miscellaneous Appeal has been preferred by the plaintiff -appellant against the judgment dated 5.2.2002 passed by 1st Additional District Judge, Buxar in Title Appeal No. 6 of 2001/12 of 2001 whereby he has been pleased to remand the entire suit for fresh decision without giving any finding on any issues discussed by the trial court.

(2.) THE learned Advocate of the appellant while challenging the impugned judgment submitted that the said order of the appellate court is illegal. The learned Advocate submitted that in the Code of Civil Procedure (in short "C.P.C.") there are three provisions contemplating remand by the court of appeal. The said provisions are contained under Rules 23, 23A and 25 of Order XLI of C.P.C. and since the order of remand is not in accordance with the provisions contained under the abovementioned rules, as such the same is bad in law and must be set aside. The learned Advocate further submitted that by the impugned judgment, the suit was remanded in order to facilitate the defendant -State of Bihar to adduce additional evidence but the impugned judgment will show that the appellate court has already accepted the additional evidence by admitting documents and marking the same as Exhibits B, C, D and D/1 and as such, there was absolutely no necessity for the appellate court to remand the suit. The learned Advocate further submitted that the order of remand is not according to the provisions contained under Order XLIII Rule 1A of the C.P.C. and as such, the same should be set aside.

(3.) FROM plain reading of the wording of the above mentioned rules it appears that for recording additional evidence, there is no provision for remand of the entire suit and, therefore, I am of the view that on this score alone, the impugned order is bad in law.