SIRI CHAND PRASAD Vs. LAKSHMI SINGH

JUDGEMENT

(1.) The lower appellate Court framed the following issue: "Is the plaintiffs' sale deed dated 8th October, 1955 invalid in view of the provisions of Section 9 of the Bihar Privileged Persona Homestead Tenancy Act 1947 (hereinafter called the Act)" and remanded the case to the trial court for a finding on the above issue after giving opportunities to the parties to adduce evidence on this issue and to submit its finding to that court under the provisions of Order 41, Rule 25 of the Code of Civil Procedure, by its order dated June 24, 1967 and kept the record of the case in. its own file. The parties were also directed to get their pleadings amended on the above issue in the trial court within 15 days of that order. The plaintiff-respondents have come up in this Court against the aforesaid order of remand.

(2.) The main grievance of the petitioner is that the course adopted by the lower appellate court is wholly without jurisdiction. He submitted that the issue framed by the lower appellate court in this case did not arise on the pleadings of the parties. In this case, the Court below directed the parties to get their pleadings amended on the above issue in the trial court. This clearly shows that even though the lower appellate court was conscious of the fact that the proposed issue to be tried did not arise on the pleadings of the parties and the trial of the issue depended on the amendment of the pleadings of the parties, which the court directed to be done within a fortnight and as such, the remand order was unjustified. In my opinion, there is a Rood deal of force in this contention of learned counsel for the petitioner.

(3.) Order 41, Rule 25 of the Code of Civil Procedure reads as follows: "Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate Court essential to the right decision of the suit upon the merits, the appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the appellate Court together with its findings thereon and the reasons thereof."