JUDGMENT: Gopal Krishan Vyas, J. The instant civil misc. appeal has been filed by the appellant under Order 43, Rule 1 read with Section 104 CPC against the judgment and decree dated 11.9.2015 passed by the learned Addl. District Judge, Salumber, District Udaipur in Appeal No.25/2012 whereby the learned appellate court though allowed the appeal filed by the appellant, but while observing that judgment and decree of the learned trial court is liable to be dismissed, yet instead of decreeing the suit, remanded the matter to the learned trial court for rehearing and re-deciding the matter while setting aside the judgment and decree of the learned trial court dated 11.10.2011 passed in Civil Suit No. 40/2014. 2. The learned counsel for the appellant submits that the learned lower appellate court committed an error of law in remaining the matter to the learned trial court because as per Order 41, Rule 23 and 23A of CPC the remand order can be made where the appellate court considers that retrial of the case is necessary, but from perusal of the impugned judgment of appellate court it is clear that neither any direction has been given nor any observation has been made for retrial of the case is necessary, therefore, the appellate court was under obligation to decide the appeal on its merit. 3. Learned counsel for the appellant submits that as per the law laid down by the Hon'ble Supreme Court if there are already evidence on record than the appellate court should decide the matter on merit in stead of re d of remanding the matter to the learned trial court for deciding the matter afresh as the appellate court itself is having jurisdiction to decide the case on merit. In support of his contention, the learned counsel for the appellant invited my attention towards the judgment of the Hon'ble Supreme Court in the case of Ashwin Kumar K. Patel v. Upendra J. Patel & Ors reported in 1999 DNJ (SC) 207 and submits that the judgment impugned may kindly be quashed. 4. Learned counsel for the appellant submits that the judgment is totally erroneous because the learned trial court accepted that there is an evidence in favour of the appellant, therefore the judgment of the lower appellate court may kindly be quashed and the suit filed by the appellant plaintiff may kindly be decreed as prayed in the suit. 5. 4. Learned counsel for the appellant submits that the judgment is totally erroneous because the learned trial court accepted that there is an evidence in favour of the appellant, therefore the judgment of the lower appellate court may kindly be quashed and the suit filed by the appellant plaintiff may kindly be decreed as prayed in the suit. 5. After hearing the learned counsel for the appellant I have perused the finding given by the learned appellate court, which reads as under: ^^vihykFkhZ ioZrflag }kjk mDr Hkwfe djhc 30 o"kZ iwoZ fofHkUu O;fDr;ksa ls [kjhnuk crkbZ gS] mu O;fDr;ksa us viuk 'kiFk&i= i=koyh ij izLrqr fd;k gSA bu fodzsrkx.k ls dkQh volj izfrijh{k.k fn;s tkus ds ckn Hkh izfroknhx.k dh vksj ls dksbZ izfrijh{k.k ugha fd;k x;k gSA bl izdkj vihykFkhZ ioZrflag ,oa mlds lkf{k;ksa dh lk{; ls laca/k esa [kf.Mr ugha gqbZ gSA dfFkr fodz;&i= izn'kZ 2] 3 o 4] 30 o"kZ iqjkus nLrkost gSaA 30 o"kZ iqjkus nLrkost gksus ds dkj.k bu nLrkostksa ds laca/k esa lk{; vf/kfu;e] 1872 dh /kkjk 90 esa mi&/kkj.kk fd;s tkus dh O;oLFkk dh xbZ gSA ysfdu bl mi/kkj.kk ds laca/k esa v/khuLFk U;k;ky; }kjk dksbZ fopkj ugha fd;k x;k gSA blds vykok bl izdj.k esa vihykFkhZ ioZrflag us mi[k.M vf/kdkjh dks izkFkZuk&i= izLrqr dj [kljk uEcj 533 dh 0-3 gSDVs;j Hkwfe vkcknh ntZ djk;h gSA nLrkostksa ds voyksdu ls ;g fofnr gksrk gS fd ml le; bl Hkwfe ij vihykFkhZ us viuk dCtk gksuk of.kr fd;k Fkk mldh izkFkZuk ij ;g Hkwfe vkcknh esa ntZ dh xbZ gS ;fn vihykFkhZ dk dCtk ugha gksrk rks jktLo vf/kdkjh rRle; bl Hkwfe ij mldk dCtk u gksus ds vk/kkj ij mldk izkFkZuk&i= [kkfjt dj ldrs Fks ,oa mlds fo:) vf/kdze.k dh dk;Zokgh dj ldrs Fks ysfdu bu nLrkostksa ds lk{; esa foospu ds mijkUr v/khuLFk U;k;ky; us ;g fu"d"kZ fn;k gS bu nLrkostksa esa vihykFkhZ dk dCtk of.kZr ugha gSA lkekU;r% vkcknh Hkwfe esa fdlh O;fDr dk dCtk ntZ ugha gksrk gSA bl izdkj v/khuLFk U;k;ky; us fook|d la[;k 1 ds laca/k esa tks fu"d"kZ ikfjr fd;k gS] og fdlh izdkj ls Hkh rF; ,oa fof/k ds vqu:i gksuk izekf.kr ugha gksrk gS rFkk ;g fook|d fu"d"kZ dh iqf"V u dh tkdj [kf.Mr gksus ;ksX; gSA 10- bl izdj.k esa vU; fook|dksa dk fu.kZ; bUgha nks eq[; fook|dksa ij vk/kkfjr gSA pwafd bu nksuksa gh fook|dksa dk fu.kZ; rF; ,oa fof/k ds vuq:i ugha gksus ds dkj.k [kf.Mr fd;k x;k gS rFkk i=koyh ij miyC/k lk{; dk foospu ,oa lacaf/kr fof/k dk foospu u gksus ds dkj.k mUgsa iqu% fu.kZ; gsrq ;g i=koyh fjek.M fd;k tkuk U;k;ksfpr izrhr gksrk gSA vr% vkisf{kr fu.kZ; o fMdzh fnukad 11-10-2011 [kf.Mr fd;k tkdj i=koyh dks iqu% fu.khZr fd;s tkus gsrq mHk; i{kksa dh lquokbZ dk volj nsdj iqu% fu.kZ; gsrq fjek.M fd;k tkuk mfpr gSA** 6. Upon perusal of the above, I am of the opinion that the judgment cited by the learned counsel for the appellant in the case of Ashwin Kumar K. Patel (supra) is not applicable in the present case because as per the finding given by the learned lower appellate court there is no finding in the judgment of the learned trial court with regard to presumption of the document under Section 90 of the Evidence Act, 1972. Therefore, obviously if no finding was given by the learned trial court then, there was no material to reverse the any erroneous finding given by the learned trial court. In view of the above fact, I have perused the para no.8 of the judgment in the case of Ashwin Kumar K. Patel (supra), which reads as under: "8. In our view, the High Court should not ordinarily remand a cause under Order 41, Rule 23 CPC to the lower Court merely because it considered that the reasoning of the lower court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima facie case on the material available. In mattes involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary." 7. Upon perusal of the above adjudication made by the Hon'ble Supreme Court it is obvious that as per above verdict ordinarily the matter should not be remanded under Order 41, Rule 23 CPC to the lower court because reasoning of the lower court in some respect may be wrong but here in this case, there is no finding with regard to presumption, therefore, the first appellate court has rightly remanded the case to the trial court to decide the case afresh. 8. 8. In view of the above, without interfering in the judgment dated 11.9.2015 the instant appeal is disposed of with direction to the learned trial court to decide the suit within a period of three months from the date of receiving certified copy of this order.