- (1.) Leave granted.
(2.) Challenge in this appeal is to the order passed by learned Single Judge of the Allahabad High Court setting aside the order passed by the First Appellate Court, and directing it to take decision on merit.
(3.) Essential facts are as follows: Respondent no.1 as plaintiff no.1 along with one Gabbu filed Suit No.23 of 1960 for declaration that the land in dispute belongs to it and the defendants have no concern with the property. Assertion was that the property in question had vested in it in view of the notification issued by the State Government after abolition of Zamindari. The suit was decreed on 17.1.1972. The trial court granted relief of permanent injunction in respect of suit property as described in the Schedule and also declared that plaintiff no.1 is the owner of the said plot. The decree was challenged by way of appeal by the appellants. During the pendency of the appeal, an application to amend the written statement was allowed by the Appellate Court. Thereafter certain additional issues were framed. The Appellate Court was of the view since the written statement had been amended during the pendency of the appeal, the matter should be remanded to the trial court for fresh decision. Challenging the order passed, an appeal was filed by respondent no.1 before the High Court. Stand of the plaintiff no.1 before the High Court was that the Appellate Court committed an illegality in remanding the matter for fresh consideration. It was submitted that the Appellate Court could have exercised its discretion under Order XLI Rule 25 of the Code of Civil Procedure, 1908 (in short 'the Code') and it could have recorded evidence itself. It was the opinion that the same was necessary for disposal of the appeal. ;