JUDGMENT 1. 1. This revision has been directed against the order dated 27.9.91 passed by learned Civil Judge, Sawai Madhopur, by which he set- aside the order of learned Munsif, Sawaimadhopur, rejecting the application for temporary injunction filed by the non petitioner and remanded the case back to the said court for deciding the application for temporary injunction afresh in accordance with law. 2. The brief relevant facts of the case are that the plaintiff non-petitioner filed a suit for injunction against the petitioner with the allegations that his date of birth is 7.3.1939 but the petitioners are going to retire him treating his date of birth as 1.7.1933. he prayed that the defendant petitioners be restrained from retiring him before 31.5.1997. Alongwith the plaint, the plaintiff also filed an application for temporary injunction. The same was contested by the petitioners. The trial court vide its order dated 28.6.1991, rejected the application for temporary injunction. Against this order, the plaintiff filed an appeal which was allowed by the learned Civil Judge, Sawaimadhopur, vide its order dated 27.9.1991 and after setting aside the order passed by the trial court, the learned Civil Judge directed the trial court to decide the application for temporary injunction after considering the documents produced by the parties. This order has been challenged in this revision by the defendants. 3. It has been argued by Mr. Agarwal, counsel for the petitioners that the lower appellate court committed serious illegality in setting aside the order of the trial court and in remanding the same to the said court for deciding the same afresh. There was sufficient material before the lower appellate court for deciding the appeal and if the Court was of the opinion that any parties have concealed any document which was necessary, the Court should have drawn adverse inference but on that ground the Court was not justified in remanding the case to the trial court. He argued that under Order 41 Rule 23A, an appellate court has jurisdiction to remand the case to the trial court if the appellate court considers that the re-trial in necessary. But in the present case the application under Order 39 Rules 1 and 2 has been decided on the basis of affidavits and none of the parties prayed that the case be remanded back as the re-trial was not necessary. But in the present case the application under Order 39 Rules 1 and 2 has been decided on the basis of affidavits and none of the parties prayed that the case be remanded back as the re-trial was not necessary. He further argued that the order of the trial court cannot be set-aside unless the Court comes to the conclusion that the same was passed erroneously or without considering the relevant material on record or was arbitrary one. He argued that the order of the learned Civil Judge be set aside and the order of the trial court be confirmed. 4. On the other hand, Mr. R. P. Vijay, counsel for the plaintiff non-petitioner argued that the petitioner did not produce before the trial court check form and thus concealed the material document. He further argued that the case has only been remanded to the trial court and as such it cannot be said that the petitioners are aggrieved with the said order. He also argued that there is no irregularity and illegality in the order passed by the learned Civil judge, Sawaimadhopur. 5. The learned Civil Judge after hearing counsel for the parties, in its impugned order came to the conclusion that there must be some documentary evidence in the service record of the plaintiff for the verification of his date of birth. But in the present case, there is no such material in the service record of the plaintiff. Further more, check form is necessary to decide the date of birth of the plaintiff but the same is also not available, on record. He further observed that the trial court did not believe the certified copy of the school certificate but the plaintiff non-petitioner also filed the original certificate before him. Under these circumstances, the appellate court remanded the case to the trial court. 6. After hearing counsel for the parties, I am of the view that the lower appellate court instead of remanding the case to the trial court should have decided the appeal on merits. If the defendant-petitioners did not produce any document which was required, the Court should have drawn adverse inference against the defendants. But the case would not have been remanded back on the grounds which are mentioned in the order of the lower appellate court. If the defendant-petitioners did not produce any document which was required, the Court should have drawn adverse inference against the defendants. But the case would not have been remanded back on the grounds which are mentioned in the order of the lower appellate court. Thus the lower appellate court committed serious illegality in setting aside the order the trial court and in remanding the case to the trial court for deciding the application for temporary injunction afresh without reversing the findings of the trial court. It is pertinent to note that unless the findings given by the trial court are reversed; the appellate court has got no jurisdiction to remand the case after setting aside the order. Consequently, I am of the view that the order of the lower appellate court is arbitrary one and in case the same is allowed to stand, it would occasion failure of justice. 7. In the result, I allow the revision, set-aside the order of learned Civil Judge, Sawaimadhopur, dated 27.9.1991, and direct him to decide the appeal filed by the plaintiff non-petitioner on merits within a period of three months from today. Till then the plaintiff non-petitioner shall not be retired.Revision allowed. *******