- (1.) The defendant-appellants have filed this appeal against the order of the Senior Subordinate Judge (with enhanced appellate powers), Jind, dated Ist June, 1977, whereby he set aside the decree of the trial Court and remanded the case under Order 41 Rule 23-A of the Code of Civil Procedure, for redeciding the same after allowing the parties to lead fresh evidence as well.
(2.) The plaintiff-respondent filed a suit for permanent injunction seeking to restrain the defendants from using the site in dispute and from placing any article on the cite in question and from preventing the defendant from raising a staircase thereon. On the pleadings of the parties, the following issues were framed :- 1. Whether site in dispute is a part of the tenanted premises. If so, its effect 2. Whether suit is not maintainable in the present form 3. Whether plaintiff is entitled to relief of injunction prayed for The trial Court dismissed the suit on the ground that the plaintiff has no right to construct on the part of the tenanted part without seeking eviction of the defendants. Feeling aggrieved against the judgment and decree of the trial Court, the plaintiff filed an appeal before the Senior Subordinate Judge (with enhanced appellate powers). The lower appellate Court has remanded the case under Order 41 rule 23-A, for giving a fresh decision after making due appreciation of the evidence on the record in the light of the observations made therein. It has also been directed that in order to make matters more clear the parties are at liberty to adduce fresh evidence as well.
(3.) The learned counsel for the appellants has argued that the lower appellate Court could not set aside the decree of the trial Court on the ground that the trial Court should redecide the same after due appreciation of the evidence on the record. According to the learned counsel, it was hardly a ground to set aside the decree. In case the lower appellate Court did not approve the findings given by the trial Court on the evidence already on the record, he could reverse the findings of the trial Court and pass a decree in accordance with law. It was further contended that in no circumstances fresh evidence could be allowed to be produced by the lower appellate Court. There was no such prayer made by either of the parties nor there was any such occasion to give such a direction.;