Saeed-Uz-Zaman Siddiqi, J.— This appeal has been preferred against the judg ment and decree dated 01.05.2009 passed by the Learned Additional District Judge, Court No. 5, Lakhimpur Kheri in Civil Appeal No. 40/98 and Civil Appeal No. 41/98 arising out of the common judgment passed in Regular Suit No. 46/91.? Regular Suit No. 32/95, which was consolidated and Regular Suit No. 46/91 was made the leading case. 2. Heard learned counsel for both the parties and have gone through the records. 3. The learned First Appellate Court has also made Civil Appeal No. 40/98 as leading appeal and has set aside both the appeals together. He has allowed the appeal and set aside the decree passed by the learned Trial Court and remanded back the matter for fresh hearing. I agree with the apathy as placed before this Court by learned Counsel for both the parties that the learned First Appellate Court must have disposed of both the appeals on merits, as there is no ground for remand. 4. I am afraid that the Learned First Appellate Court has not entered into the merits of the dispute between the parties and has just disposed of the appeals for the shake of disposal, without any application of mind, what to say application of judicial mind. 5. A bare perusal of the judgment passed by the learned first Appellate Court is sufficient to exhibit that such judgments are sufficient to shake the faith of the liti gant public, in the judicial system. Shirking of responsibility is foreign subject for a Judge. Judicial sense is of divine nature and judicial sense of a judge should be so that when both the parties are apparently correct, the Judge could say who is more correct. But in this appeal, there is no requirement to go through the lower Court record. The discussions starts from the later part of Page No. 13 and ends on the beginning part of Page No. 16.These findings are nothing but a rigmarole. 6. It is to be mentioned here that the appellant has earlier filed FAFO No. 127/2002,which has been decided by this Court vide judgment dated 16.11.2007.
The discussions starts from the later part of Page No. 13 and ends on the beginning part of Page No. 16.These findings are nothing but a rigmarole. 6. It is to be mentioned here that the appellant has earlier filed FAFO No. 127/2002,which has been decided by this Court vide judgment dated 16.11.2007. That FAFO was also allowed and the judgment of the Learned District Judge dated 10.01.2002 was set aside and he was directed to take up both the appeals together and decide both the appeals through a common judgment in the light of the observations made hereinabove. Taking advantage of the observations made by this Court, the learned First Appellate Court was set at liberty to exercise option of remanding back the matter, the First Appellate Court has remanded the matter on flimsy grounds and this is not warranted under the law. Remand of case is the last option before any appellate Court, which should be exercised with due care and diligence. It is the duty of every Court of law to decide the lis finally, in an effective manner and, ensure that the dispute between the parties is resolved quickly. 7. Order XXXXI Rule 23 CPC provides for remand of case by Learned Appellate Court which provides that when a suit has been decided on a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case and may further direct all the issue or issues shall be tried in the case so remanded by an amendment made by this Court. It is also provided that, "where the appellate Court, while reversing or setting aside the decree and appeal consider it necessary in the ends of justice to remand the case, the learned First Appellate Court has not at all mentioned as to why it be considered necessary in the interest of justice to remand the case. Rule 23 A of this order deals with a case where, "re-trial is considered necessary." 8. The Learned First Appellate Court has not bothered to look into the law as applicable to the powers of remand of case by the Appellate Court. 9.
Rule 23 A of this order deals with a case where, "re-trial is considered necessary." 8. The Learned First Appellate Court has not bothered to look into the law as applicable to the powers of remand of case by the Appellate Court. 9. In view of these circumstances, learned counsels for both the parties have jointly submitted before this Court that the appeal may be allowed and the Learned First Appellate Court may be directed to pass an effective judgment and hear the first appeals on merits. 10. This Court has no other option but to allow the appeal. 11. The appeal is accordingly allowed. The impugned judgment is hereby set aside. 12. The District Judge, Lakhimpur Kheri is directed to hear Civil Appeal No. 40/98 and Civil Appeal No. 41/98 within ninety days from the receipt of the copy of the judgment positively. _____________