GANPATI CONSTRUCTION COMPANY Vs. DILMOHAN RAJ MATHUR

JUDGEMENT

(1.) WITH the consent of the learned counsels for the parties the appeal is decided finally at the admission stage.

(2.) THE present appeal arises out of the order dated 04.06.2004 passed by the Additional District Judge, Court No.2, Ajmer (hereinafter referred to as "the appellate court ") in Civil Appeal No.54/2000, whereby the appellate court has allowed the appeal filed by the respondent No.1 by setting-aside the judgment and decree dated 28.07.2000 passed by the Civil Judge (Junior Division) (North) Ajmer, (hereinafter referred to as "the trial court ") in Civil Suit No.15/1996, and has remanded the case to the trial court for deciding the suit afresh after taking on record certain documents filed by the respondent No.1 and after recording the additional evidence thereon.

(3.) IT has been submitted by the learned counsel Mr. R.K. Goyal, for the appellant that the appeal at the instance of the respondent No.1, who was not the party-defendant in the suit, was not maintainable before the appellate court and the appellate court should not have allowed the same and remanded the case to the trial court. He also submitted that the respondent No.2 State having withdrawn the appeal filed by it against the judgment and decree passed by the trial court, the appeal at the instance of the respondent No.1 before the appellate court was not maintainable. He further submitted that appellate court had exceeded its jurisdiction by remanding the case dehorse the provisions contained in Order XLI of CPC. However, the learned Senior Counsel Mr. R.N. Mathur, for the respondent No.1, has submitted that the trial court having fixed the responsibility on the respondent No.1 and having directed the respondent No.2 to initiate departmental enquiry against the respondent No.1, such order was required to be challenged before the appellate court by the respondent No.1. He further submitted that the respondent No.1 having filed the additional documents before the appellate court, the matter was rightly remanded to the trial court for deciding afresh in the light of the said documents.