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2009 DIGILAW 218 (RAJ)

Laxmi Narayan v. Shiv Kumar

2009-01-23

PRAKASH TATIA

body2009
JUDGMENT 1. - Heard learned counsel for the parties. 2. The suit of the plaintiff was dismissed by the trial Court vide judgment and decree dated 29.11.2002. The above judgment and decree has been set aside by the first appellant Court vide order dated 25.8.2008 merely on the ground that the trial Court did not properly considered the evidence of the parties and did not record the sufficient reason for deciding the suit. 3. The first appellate Court had full power to decide the suit in view of the fact that it is not the case that evidence was not available on record for deciding the issue by the appellate Court. Even if trial Court did not consider any evidence then that can be ground to assail the judgment and decree of the Court below and the appellate Court supposed to consider the evidence and give its decision on issues after considering the evidence led by the parties. Order 41 Rule 24 C.P.C. clearly provides that in a case where issue is not settled by the trial Court or the trial Court proceeded on a different issue than the issue for which the appellant Court wants to proceed, the appellate Court can do so and it is not necessary to remand the matter to the trial Court. 4. From the order of the first appellate Court it is clear that the first appellate Court has not remanded the matter on account of fact that evidence on record is not sufficient for deciding issue in the suit or issues have not been properly framed. The appellate Court also has not ordered for re-trial. In fact, the order of the appellate Court is only direction to the trial Court to re-write the judgment, which is not permissible under law. 5. In view of Order 41 Rule 24 C.P.C. the order of the first appellate Court remanding the matter to the trial Court after setting aside the judgment and decree of the trial Court dated 25.8.2008 is set aside. The appellate Court shall decide the appeal on merits. Both the parties are directed to appear before the first appellate Court on 17.2.2009.The writ petition of the petitioner is allowed accordingly.Appeal Allowed. *******