SWATANTER KUMAR, J. - (1.) THIS second appeal from Order is directed against the judgment of the learned Additional District Judge, Bhiwani, dated 16.2.2001. Vide impugned order, the learned first appellate Court passed the following order :- "At the time of arguments, Shri N.S. Dhankar, learned Law Officer took the plea that learned trial Court has not recorded any findings under Issue No. 3 which is material issue so as to decide whether civil Court has got jurisdiction to decide the matter in controversy or not. Learned counsel for the respondents has also conceded this fact that learned trial Court has not recorded any findings under issue No. 3 and the same is material for just decision of the case. 11. In view of these facts it has become necessary to remand the case to the learned trial Court with the directions to record specific findings under issue No. 3. Accordingly, the judgment and decree dated 16.1.1997 are hereby set aside and the same is remanded back to the trial Court with the directions to record the specific findings under issue No. 3 and re-write the judgment. File be consigned to the record room. Record of the trial Court be sent back forthwith. Parties through their counsel are directed to appear before Sh. R.N. Bharti, learned Addl. Civil Judge (Senior Division), Loharu, on 24.2.2001 (Successor Court of Shri T.C. Tanwar, the then learned Addl. Civil Judge (Senior Division), Loharu, at 10 A.M. sharp."
(2.) IT is conceded before this Court, by the learned counsel appearing for the respective parties that the learned first appellate Court did not set aside or even doubted the findings recorded by the learned trial Court on all other issues. The learned trial Court vide its order dated 24.5.1993 framed as many as 7 issues. All the 7 issues had been decided on merits and taking into consideration the documentary as well as oral evidence led by the parties with the exceptions of issue No. 3. Issue No. 3 relates to the jurisdiction of the civil Court. The learned first appellate Court could not have remanded the suit for a fresh trial without setting aside the findings recorded by the learned trial Court on all other issues. The bare reading of the impugned order shows that the learned first appellate Court neither intended nor actually set aside the findings on other issues and he was impressed only with one fact that learned trial Court has not recorded finding on issue No. 3. The learned first appellate Court could have decided issue No. 3 itself or would have called for the report from the learned trial Court. This case was certainly not one where the learned first appellate Court should have exercised its jurisdiction under Order 41 Rule 23 of the Code of Civil Procedure for remanding the case for a fresh trial. The provisions of the Code of Civil Procedure have been amended from time to time primarily with the legislative intend to provide expeditious disposal of the proceedings before the Court. Such expeditious disposal of suit and appeal is the essence of our judicial system. This purpose would stands defeated if the cases are remanded except for exceptional circumstances, which would squarely fall within the ambit and scope of Order 41 of the Code of Civil Procedure. Keeping in view the facts and circumstances of the case, I have no hesitation in coming to the conclusion that the present case is not one, which squarely falls within that limited class of cases. The learned first appellate Court normally should have decided issue No. 3 itself. The evidence led by the parties on these issue was on record and even learned trial Court had discussed the merits of this issue. However, it did not record specific finding on this issue. Even if the first appellate Court felt need of having opinion of the trial Court or a definite finding, it should have sent for the report on that issue from the learned trial Court, while keeping the appeal pending before it.
(3.) IN view of the above, judgment of the first appellate Court is set aside. It is directed that learned trial Court shall submit its report on issue No. 3 within three months from today and send the same to the first appellate Court for disposal of appeal in accordance with law. The first appellate Court shall retain the appeal filed before it. Appeal is accordingly disposed of. Appeal disposed of.;