Bela M. Trivedi, J. - (1.) WITH the consent of the learned counsels for the parties, the appeal is decided finally at the admission stage. The present appeal has been filed by the appellant -plaintiff challenging the order dated 13.4.09 passed by the Addl. District Judge (Fast Track) No. 5, Jaipur City, Jaipur (hereinafter referred to as 'the appellate court') in Civil Regular Appeal No. 2/08, whereby the appellate court has allowed the appeal by setting aside the judgment and decree dated 26.4.08 passed Addl. Civil Judge (J.D.) & Judicial Magistrate No. 1, Jaipur (hereinafter referred to as 'the trial court') in Civil Suit No. 70/07 (460/02) and remanded the case to the trial court for deciding it afresh, on the additional issues framed by the appellate court.
(2.) IN the instant case, it appears that the appellant had filed the suit seeking eviction of the respondent -defendant from the suit premises, which suit was decreed by the trial court against which the respondent had preferred an appeal. The appellate court framed the additional two issues and remanded the case to the trial court directing it to decide it afresh, vide the impugned order, which is under challenge before this court. It has been sought to be submitted by the learned counsel Mr. Anees Khan for the appellant that the appellate court has wrongly remanded the case to the trial court, inasmuch as the appellate court had neither reversed the decree passed by the trial court nor found the retrial necessary as contemplated under Order XLI Rule 23 -A. According to him, the appellate court had also not exercised the powers under Rule 25 and 27 of the said Order and, therefore, the impugned order deserves to be set aside.
(3.) HOWEVER , the learned counsel Mr. Usman Khan for the respondent, supporting the impugned order passed by the appellate court submitted that the trial court had omitted to frame the two issues, now framed by the appellate court on which additional evidence was required to be led and therefore the trial court is directed to decide the suit afresh in the light of the said issues.;