BHARGAVA, J. - (1.)THIS is a revision by the plaintiff against the order dated 1st September, 1966, of the learned District Judge, Jodhpur by which he set aside the judgment and decree of the trial court and sent the case back for a fresh trial and also dismissed the plaintiff's appeal.
(2.)THE plaintiff instituted the present suit for recovery of Rs. 1380/-on 11-12-1956. THE defendants contested the suit and issues were framed on 10th March, 1958. Since burden of proof of some issues was on the defendants they were directed by the court to begin their evidence first. Statements of some of the defendants' witnesses were recorded, but thereafter, their evidence was closed and similar is the grievance of the defendants with regard to the witnesses whom they wanted to examine in rebuttal. THE trial court, however, after recording the evidence of the plaintiff, finally disposed of the case.
Against the said judgment and decree both parties went in appeal to the District Judge, Jodhpur and in the appeal filed by the defendants it was argued on their behalf that the trial court wrongly refused to examine their witnesses on both occasions. The learned District Judge agreed with the above contention and after reversing the judgment and decree of the trial court sent it back for fresh trial. In view of the above order plaintiff's appeal was also dismissed. It is against this order that the present revision application has been filed and the main contention of the learned counsel is that the appellate court has acted with material irregularity in setting aside the judgment and decree of the trial court. If the appellate court was of the view that defendants' evidence had been wrongly shut out, it should have adopted the procedure laid down in order 41 rules 27 and 28 of the Civil Procedure Code. In support of this contention reliance is placed on Motibhai Jesinghbhai Patel vs. Ranchhodbhai Shambhubhai Patel (1), Azizul Haque vs. Ramdhari Ram Kunia (2) Pusulari Puchamma vs. Sankaramanchi Ramasitamma (3), Veerabhadrappa vs. Challa Venkatappa, (4) and The Municipal Corporation of Greater Bombay vs. Lala Pancham (5 ). It is clear from the order of the learned District Judge that it is not one falling under O. 41, R. 23 which applies where the trial court had disposed of the suit upon a preliminary point and the decree is reversed in appeal or under O. 41. R. 25 where the trial court had omitted to frame or try any issue, or to determine any question of fact which appears to the appellate court essential to the right decision of the suit, but this is a case to which O. 41, R. 27 applies, because here the learned District Judge has found that the trial court wrongly refused to examine the defendants' witnesses. Under this rule when the appellate court allows additional evidence to be taken either under cl. (a) or (b), it may either take such evidence itself or direct the court from whose decree the appeal is preferred or other subordinate court to take such evidence and to send it when taken to the appellate court (R. 28 ).

The question, therefore, is whether the appellate court was empowered while exercising power under O. 41, r. 27 to set aside the judgment and decree of the trial court and order a fresh trial. On this question because of the pronouncement of the Supreme Court, it is not necessary to consider the other decisions relied upon by the learned counsel for the petitioner. The Supreme Court in the above cited case observed after quoting the order of the Bombay High Court that - "this clearly shows that what the High Court has in substance done is to order a fresh trial. Such a course is not permissible under O. XLI, r. 27, Code of Civil Procedure. The High Court has quite clearly not proceeded under O. XLI, r. 25 because it has not come to the conclusion that the City Civil Court had omitted to frame or try an issue or to determine the question of fact which was essential to the right decision of a suit, For, the High Court has not indicated which issue was not tried by the trial court. If the High Court meant that the necessary issue had not been raised by the trial court though such issue was called for in the light of the pleadings, the High Court is required under this rule to frame the additional issue and then remit it for trial to the City Civil Court. Finally, this is not a case which was decided by the trial court on any preliminary point and, therefore, a general remand such as is permissible under R. 23 could not be ordered. "

It is, therefore, beyond question that while purporting to act under O. 41, r. 27, the learned District Judge could not have set aside the judgment and decree of the court below. He should have kept the appeal on its own file and should have either recorded the evidence of the witnesses desired to be examined by the defendants or should have directed the lower court or any other subordinate court to take such evidence. If O. 41, r. 27 and r. 28 had been followed by the learned District Judge much time and expense would have been saved. The case had already taken a long course inasmuch as it was disposed of by the trial court in about six years and the appeal also took four years to decide. It is, therefore, essential that the appellate courts should strictly follow the procedure laid down in O. 41, r. 27 and r. 28 and a fresh trial should not be ordered in such cases.

This revision application is, therefore, allowed, order of the learned District Judge is set aside and the case is sent back to that court for taking the appeal of the parties on its original number. The learned District Judge would hear the appeal afresh and if he is satisfied that additional evidence should be taken under O. 41, r. 27, he would act in compliance with R. 27 and R. 28 of the Code, and, thereafter, decide the appeal on merits. Parties will bear their own costs of this revision application. .

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