YADAV, J. - (1.) THE instant second appeal has been filed against the judgment and decree dated 5. 5. 95 passed by learned Civil Judge (Senior Division), Pali in Civil Appeal No. 14/94 whereby the judgment and decree dated 18. 8. 93 passed by learned Munsif and Judicial Magistrate, Marwar Junction in Civil Original Suit No. 18/92 has been set aside and suit has been remanded for trial in accordance with law.
(2.) I have heard learned counsel for the appellant Shri H. R. Soni holding brief of Shri Abdul Aziz Khan and Shri MS Singhvi and Shri Dinesh Maheshwari as Amicus curiae at length. This second appeal is misconceived for the reason that against the impugned judgment and decree remanding the case under 0. 41 r. 23 C. P. C. is appealable under 0. 43 r. l (u) CPC and as such no second appeal is maintainable u/s. 100 CPC. At this stage, the learned counsel for the appellant made an oral application before me that this second appeal may be converted into a misc. appeal under 0. 43 r. l (u) CPC. From the appearance of the learned counsel he appears to be young member of the Bar, therefore, such mistakes are always possible. Taking a lenient view I propose to convert this second appeal into a misc. appeal under 0. 43 r. l (u) CPC. After converting the second appeal into a misc. appeal under 0. 43 r. l (u) CPC I propose to decide the case on merits at admission stage. Brief facts necessary to be noticed for adjudication of the present misc. appeal are that an order to proceed ex-parte was passed on 19. 3. 80 and in pursuance of the aforesaid order ex- parte evidence of the plaintiff-appellate was recorded on 1. 4. 80.
(3.) AFTER recording the statement of the plaintiff ex-parte decree was passed on 5. 4. 80. Aggrieved against ex-parte decree an appeal was filed by defendant which was allowed by learned District Judge vide his order dated 27. 3. 84 and after setting aside the ex-parte decree the case was remanded to the learned trial court for decision on merits. After setting aside ex-parte decree on 27. 3. 84 several dates were given by the learned trial court but no evidence was adduced from either side, therefore, the learned Munsif and Judicial Magistrate, Marwar Junction thought it proper to decide the suit on merit on the basis of ex-parte evidence of the plaintiff recorded on 1. 4. 80. Undeniably there is no material on record to indicate that after remand of the case by learned District Judge on 27. 3. 84 the plaintiff did offer himself for cross-examination. It is also evident from order sheets of trial court that after remand the learned trial court did not post the suit for evidence of either plaintiff or defendant. ;