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2024 DIGILAW 599 (RAJ)

Sita Ram v. Prabhudayal

2024-04-15

MADAN GOPAL VYAS

body2024
ORDER : Madan Gopal Vyas, J. The present civil misc. appeal under Order 43, Rule 1 CPC has been preferred by the plaintiffs-appellants against the judgment dated 01.11.2023 passed by learned Additional District Judge No.1, Rajgarh, District Churu (for short, 'learned appellate Court') in Appeal Decree No.5/2022, whereby the learned appellate Court, while allowing the appeal filed by the defendant-respondent No.1, set aside the judgment and decree dated 06.09.2022 passed by learned Civil Judge, Rajgarh, District Churu, (for short, 'learned trial Court') in Civil Original Suit No.33/2013, and remanded the matter back to learned trial Court to pass fresh judgment after taking the documents produced by the defendant-respondent No.1 on record and after hearing the rival parties to the extent of such documents. 2. Learned counsel appearing on behalf of appellants submits that the learned appellate Court has committed an error apparent on the face of record in remanding the matter back to learned trial Court. It is submitted that learned appellate Court was required to take on record the additional evidence produced by the defendant-respondent No.1 but the learned appellate Court has remanded the matter back without framing the fresh issue or without making any observation upon the preliminary issues. It is further submitted that learned trial Court has decided all the issues after considering the evidence of both the parties as well as documents produced, therefore, there was no occasion for the appellate Court to remand the matter back to learned trial Court for deciding the same afresh. 3. Learned counsel appearing for the respondent opposed the prayer made by learned counsel for the appellants and submits that the learned appellate Court has rightly passed the order impugned and remanded the matter back to learned trial Court. 4. Heard learned counsel for the parties and perused the material available on record. 5. A bare perusal of the order impugned dated 01.11.2023 passed by the learned appellate Court makes it clear that the learned appellate Court has considered the order dated 28.05.2019 passed by the learned trial Court, whereby while deciding the application under Order 14, Rule 5 CPC filed by the defendant No.1, Issue No.6 was framed and the burden of proving the said issue was cast upon the defendant No.1. Learned appellate Court has also recorded that while passing the judgment, learned trial Court has not given any finding upon Issue No.6. Learned appellate Court has also recorded that while passing the judgment, learned trial Court has not given any finding upon Issue No.6. Hence, learned appellate Court quashed and set aside the judgment and decree dated 06.09.2022 passed by learned trial Court and remanded the matter back to learned trial Court to decide the Issue No.6 and pass a fresh judgment in accordance with law. 6. In my considered opinion, the finding recorded by learned appellate Court while remanding the matter back does not suffer from any illegality, irregularity or perversity. 7. Accordingly, the appeal is hereby dismissed. The stay application also stands disposed of.