GOPAL KRISHAN VYAS,J. - (1.) The instant civil misc. appeal has been filed by the appellant under Order 43, Rule 1 read with Section 104 CPC against the judgment and decree dated 11.9.2015 passed by the learned Addl. District Judge, Salumber, District Udaipur in Appeal NO.26/2012 whereby the learned appellate court though allowed the appeal filed by the appellant, but while observing that judgment and decree of the learned trial court is liable to be dismissed, yet instead of decreeing the suit, remanded the matter to the learned trial court for rehearing and re-deciding the matter while setting aside the judgment and decree of the learned trial court dated 12.10.2011 passed in Civil Suit No.59/2014.
(2.) The learned counsel for the appellant submits that the learned lower appellate court committed an error of law in remaining the matter to the learned trial court because as per Order 41, Rule 23 and 23A of CPC the remand order can be made where the appellate court considers that retrial of the case is necessary, but from perusal of the impugned judgment of appellate court it is clear that neither any direction has been given nor any observation has been made for retrial of the case is necessary, therefore, the appellate court was under obligation to decide the appeal on its merit.
(3.) Learned counsel for the appellant submits that as per the law laid down by the Hon'ble Supreme Court if there are already evidence on record than the appellate court should decide the matter on merit in stead of re d of remanding the matter to the learned trial court for deciding the matter afresh as the appellate court itself is having jurisdiction to decide the case on merit. In support of his contention, the learned counsel for the appellant invited my attention towards the judgment of the Hon'ble Supreme Court in the case of Ashwin Kumar K. Patel v. Upendra J. Patel & Ors reported in 1999 DNJ (SC) 207 and submits that the judgment impugned may kindly be quashed.;