BHANWAR LAL Vs. BHERA

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The learned counsel for the respondents has raised preliminary objection that the second appeal is not maintainable as the first appellate court by the impugned judgment and decree dated 3.8.1975 only remanded the matter back to the trial court for re-trial. The learned counsel for the appellant also agrees that the second appeal against the impugned judgment is not provided but misc.appeal is maintainable under Order 43 Rule 1(u), C.P.C., therefore, this second appeal may be treated as misc.appeal. The learned counsel for the appellant also submitted that the first appellate court committed serious error of law in allowing the appeal and sending the matter back to the trial court for de novo trial. According to the learned counsel for the appellant, the facts pleaded in the suit can be proved by the affidavit. It is submitted that the procedure of taking evidence in court can be dispensed with by the court and in this case, when no new event took place after the remand order and after adding of new parties, the court was justified in relying upon the affidavit of the plaintiff and consequently decreeing the suit.

(3.) According to the learned counsel for the appellant, in fact the suit was decreed by the trial court on 18.3.1975 and the appeal was preferred after inordinate delay on the pretext that the decree was amended by the trial court on 8.11.1975 by which only a few of the parties were added in the title of the decree, therefore, the starting period of limitation is 18.3.1975 and not 8.11.1975. It is also submitted by the learned counsel for the appellant that the trial court committed error of law in condoning the delay in filing the appeal under Section 5 Limitation Act.