NANCHI Vs. LALA

JUDGEMENT

(1.) PLAINTIFF appellants have filed this Misc. Appeal under order XLIII rule 1 (U) C. P. C. against the judgment and judgment dated 14. 10. 1999 passed by Additional District Judge, Neemkathana, District Sikar in Civil Appeal No. 63/87 whereby he allowed the appeal of the defendants and remanded the case to the lower court for deciding the suit afresh in accordance with the provisions of the law.

(2.) PLAINTIFF-appellants filed a suit for permanent injunction on 20. 04. 1976, which was decreed by the Trial Court on 28. 09. 1987 in their favour. Being aggrieved with the same, the defendants filed an appeal which was allowed by Additional District Judge, Neemkathana. The lower appellate court after setting aside the judgment and decree of the Trial Court remanded the matter to the trial for fresh decision. Against this judgment of the lower appellate court, the plaintiff appellants have filed the present appeal.

(3.) FOR convenience provisions of Order XLI rules 23, 23a and 24 C. P. C. Are reproduced as under:- " 23. Remand of case by Appellate Court.-Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial, shall, subject all just exceptions, be evidence during the trial after remand. 23a. Remand in other cases.-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23. 24. Where evidence on record sufficient Appellate Court may determine case finally.-Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court, may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. "