MANJU SINHA Vs. ISNIGDHA MUKHERJEE

JUDGEMENT

(1.) This appeal has been preferred against the judgment dated 30th November, 2002 passed by the Addl. District Judge-VII, Hazaribagh in connection with Title Appeal No. 2/1999 whereby and whereunder the Appellate Court has set aside the judgment and decree passed by the Sub-Judge-IV in connection with Title Suit No. 110 of 1984 and remanded the matter back to the Trial Court for writing a fresh judgment after critically and properly examination of witnesses both oral and documentary brought on the record on behalf of both the parties and elaborate discussion of all the relevant issues. Learned Counsel appearing for the appellant has assailed the impugned judgment and submitted that the impugned order of remand is highly erroneous and it does not come under Rules 23, 23A and 25 of Order XLI of the Code of Civil Procedure. If the learned Appellate Court was not in agreement with the findings of the Trial Court, the Court should have reversed the judgment and passed the decree accordingly. By referring judgment reported in "Gaya Mahto vs. Leela Devi",2005 3 JLJR 587 it is submitted that the learned Addl. District Judge has not indicated any specific issue which was to be decided by the Trial Court. It is also not indicated that the issues were not properly framed. The learned Addl. District Judge has also not indicated that the evidence and documents on record are lacking to give finding by the Appellate Court, Needless to say that first Appellate Court has every right to discuss the evidence and document available on record on his own and he can well differ with the finding of the Trial Court by giving reasoned judgment. It is also indicated in Rule 24, Order XLI C.P.C.

(2.) Reliance has also been placed on the judgment "Kattukandi Edathil Krishnan and Anr. vs. Kattukandi Edathil Valsan and Ors.", 2006 9 SCC 166

(3.) Learned Counsel appearing for the respondent has opposed the argument and submitted that the learned Addl. District Judge has very clearly indicated misappreciation committed by the Trial Court in respect of evidence and document adduced and produced and remanding the case is well within the purview of Rule 23A,, Order XLI of C.P.C.