- (1.) THIS appeal is preferred from an order dated 15th october, 2007 passed by the First Appellate Court under Rule 23 and/or 23-A of order XL1 of the Code of Civil Procedure, 1908 remanding the case to the Trial court for the purpose of hearing afresh. Order XLI, Rules 23 and 23-A are quoted herein below :- "23. Remand of case by Appellate Court.-Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject all just exceptions, be evidence during the trial after remand. HIGH COURT AMENDMENTS allahabad.-In Order XLI, in Rule 23,- (a) after the words "and the decree is reversed in appeal', insert the words' or where the Appellate Court while reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case, it. " (b) Omit the words "the Appellate Court" occurring thereafter and omit also the words "if it thinks fit", occurring after the word "may", (w. e. f. 1. 6. 1957)23-A. Remand in other cases.-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23. "
(2.) THE contention of the defendants-appellants is that the appeal shall lie before this Court on such order as per Order XLIII, Rule I (u) which says; (u) an order under Rule 23 [or Rule 23-A] or Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
(3.) AFTER satisfying the Court's jurisdiction, Mr. Amit Daga, learned counsel in support of the appeal contended that the First Appellate Court was wrong in remanding the suit. The plaint was based on three several documents which are compulsorily registrable under U. P. Amendment of the section 17 of the Registration Act. Since those documents are not registered, nothing is required to be proved as per section 58 of the Indian Evidence Act, 1872 in the trial Court. Hence, the plaint was rightly rejected by the Trial Court, which failed to appreciate by the Appellate Court at the time of passing the order of remand.;