KANHAIY Vs. KHERATI

JUDGEMENT

(1.) THIS appeal against an appellate order of the Additional Commissioner, Jaipur, dated 28-4-1955, whereby the case was remanded for further trial, is bound to succeed.

(2.) THE learned Additional Commissioner has entirely ignored the provisions of 0.41, r.25 C.P.C. corresponding to rule 197 of the Rules framed under sec.8 of the Rajasthan Revenue Courts (Procedure and Jurisdiction)Act,1951. It has been clearly provided therein that if the appellate court is of the opinion that the trial court has omitted to frame or try any issue or to determine any question of fact which it considers essential for a right decision of the suit the appellate court may frame issues and refer the same for trial to the lower court. In such cases the trial court shall take the evidence and shall return the same to the appellate court with its findings there on along with its reasons therefor. THE shall thereafter be decided in the manner laid down in rule 198. In the present case we find that the learned Additional Commissioner framed one issue and remanded the case for a further trial after setting aside the decree of the trial court. This finds no support in the of law. We would therefore, allow this appeal and modify the order of the lower court to the extent that the issue framed by the lower appellate court shall be remitted to the trial court which will take additional evidence of the parties, record its findings and submit the same to the appellate court along with its reason therefor, On receipt of the findings from the trial court the learned Additional Commissioner shall proceed to decide the appeal in accordance with law.