RAJA RAM Vs. RAM SARUP

JUDGEMENT

(1.) This second appeal is directed against the order of the learned Additional District Judge, Karnal, dated December 2, 1977, whereby the judgment of this trial Court was set aside and the case was remanded for rewriting the judgment after discussing the evidence produced on the record.

(2.) The reasons given in the impugned judgment are that the trial Court did not notice as to what was stated by Data Ram, Daya Ram, Shiv Lal and Sadhu Ram, D.Ws. and as to what was contained in the documents, Exhibits D-2, D-3, P-12, P-13 and P-14. Both the reasons given by the lower appellate Court are wholly misconceived. In paragraph 7, the trial Court has noted that Data Ram, one of the vendees, appeared as D.W.4 and stated that they are in cultivating possession of the suit land. It has been further stated that Daya Ram, Shiv Lal and Sadhu Ram, D.Ws., corroborated the version of Data Ram, D.W.4. Therefore, the observation made by the lower appellate Court regarding the said witnesses is wholly without any substance. As regards the documents, Exhibits D-2 and D-3, the trial Court observed that the entries in the Khasra girdawari have been changed so as to show the defendants to be in its possession. But the trial Court did not rely on these entries for the reasons given in the judgment. These observations obviously relate to documents, Exhibits D-2 and D-3. Simply because the trial Court did not mention the documents it cannot be said that the entries in the documents have not been taken notice of. As regards documents, Exhibits P-12, P-13 and P-14, the trial Court has not based its judgment on these documents. No grievance, therefore, could be made by the defendants that these documents were not discussed in the judgment. It was the plaintiffs alone who could have made any grievance with respect to these documents. The lower appellate Court, therefore, set aside the judgment of the trial Court on wholly erroneous grounds and the order of remand consequently has to be set aside. That apart, the remand order can be made only under rules 23, 23-A or 25 of Order 41 of the Code of Civil Procedure but this remand order would not be covered by any of these rules. As held in Walaiti Ram and another v. Thakar Singh and others, 1973 75 PunLR 537 there is no power with the Court to pass a remand order under Section 151 of the Code of Civil Procedure. The remand order would be, therefore, without jurisdiction on this score also.

(3.) In view of the above discussion, this appeal is allowed, the impugned order set aside and the case sent back to the District Judge, Karnal, for entrusting the same to some other Additional District Judge to be disposed of in accordance with law. The parties, through their counsel, have been directed to appear in the lower appellate Court on February 19, 1979. No costs.