SUBHASH CHAND Vs. NANAG RAM

JUDGEMENT

(1.) THE present appeal has been filed by the appellant-defendant under Order XLIII Rule 1(u) of CPC challenging the order dated 28.5.04 passed by the learned Addl. District and Sessions Judge No.3, Jaipur City, Jaipur (hereinafter referred to as 'the appellate court') in Civil Regular Appeal No. 214/02, whereby the appellate court has set aside the judgment and decree dated 1.6.02 passed by the Addl. Civil Judge (SD) No.1, Jaipur, (hereinafter referred to as' the trial court') in Civil Suit No. 121/93 and remanded the case to the trial court for deciding the suit afresh after giving the opportunity of hearing to both the sides.

(2.) THE facts in nutshell giving rise to the present appeal are that the respondent-plaintiff had filed the suit seeking right of pre-emption to purchase the suit property, against the appellant-defendant. The trial court after framing the issues from the pleadings of the parties and taking into consideration the submissions made by the learned counsels for the parties, dismissed the suit vide the judgment and decree dated 1.6.02. Being aggrieved by the same, the respondent-plaintiff had preferred the appeal, which has been allowed by the appellate vide the impugned order.

(3.) THE learned counsel Mr. Sudesh Bansal for the respondent has also fairly submitted that the appellate court could not have remanded the case under Order XLI Rule 23A of CPC, however he submitted that since the appellate court has not decided the appeal on merits, the same be directed to be decided on merits.