- (1.) C. A. Rahim, J. This is an appeal against the judgment and order dated 23-3-1981 passed by IIIrd Additional District and Sessions Judge, Budaun, in Civil Appeal No. 37/80, remanding the case to the lower court who will ask the parties to remove vagueness of their pleadings and to file bet ter and full particulars regarding their respective claims. It was also ordered that the appellants may be asked to file fresh written statement containing proper details of the electric charges recoverable from the respondents.
(2.) LEARNED counsel for the appellant Sri Prem Prakash has submitted that such a remand to fill up the lacuna in the pleadings is not permissible in law. Order 41 Rule 23 C. P. C. is the provision by which the remand order can be made by the appellate Court. The learned counsel has referred the case of Mahabir v. Raghunath (1978) AWC (Revenue) 25, wherein it has been held that: "the lower appellate court remanded the case to give either party further opportunity of producing oral evidence on the question of identifiability of the land. Such remand order held to be in violation of Order 41 Rule 23. " The learned counsel for the respon dent, U. P. State Electricity Board, Lucknow, has submitted that in the written statement filed by them they have clearly mentioned how the amount claimed became due and there was no ambiguity in it, but in the judgment the learned Judge has stated that the written statement filed by the State Electricity Board was vague and defective, so better particulars were required from them to ascertain the exact amount recoverable from the appellant of this case.
(3.) IT is not the duty of the Court to allow to a party to fill up the lacuna or to clear vagueness, if any, existing in the writ ten statement. If the court feels that such a lacuna is there the party shall suffer. The object of Order 41 Rule 23 is otherwise. In the given case the parties were not allowed to adduce further evidence in order to fill up their infirmity. The contention of the learned counsel appearing for the U. P. State Electricity Board also does not corroborate the finding of the learned Judge that such a privilege was required in filing a fresh writ ten statement after making proper calcula tion, as observed. So in any case the order passed by the learned Judge does not seem to be proper and accordingly it should not sustain. The appeal is, therefore, allowed. The judgment and order dated 23-3-1981 is hereby set aside. The case is sent back to the lower court, namely, to the court of District and Sessions Judge, Budaun, who will nominate any of the Additional District and Sessions Judges to hear this appeal afresh. Since the matter has become old it is directed that the appeal should be disposed of within a period of three months from this date. A copy of the judgment be sent to the court of District Judge, Budaun, within a week. Appeal allowed. .;