YADAV, J. - (1.) INSTANT First Appeal has been preferred against the judgment and decree dated 23. 12. 1980 passed by learned District Judge, Sri Ganga- nagar in Civil Original Suit No. 61 of 1974 dismissing the suit with costs filed by the plaintiff-appellant.
(2.) THE first appeal was admitted on 5. 5. 1981. Notice was issued to the sole respondent. Irrespective of due service on him, neither he is present in Court personally nor he has engaged any counsel. In such circumstances, this Court has no alternative except to proceed ex parte against the respondent as provided under sub-rule (2) of R. 17 of O. 41 CPC. A close scrutiny of the record requisitioned from the learned trial Court reveals that except pleadings of the parties and judgment given by the learned District Judge no evidence either oral or documentary are available on record, which leads towards an irresistible conclusion that the evidence part of the record has been weeded out by the learned trial Court. The learned counsel for appellant candidly admitted that the evidence part of the record has been weeded out. It is urged by the learned counsel for appellant before me that the first appeal can be decided even in absence of the evidence part of the record of the learned trial Court. I am not satisfied with the argument of the learned counsel for the appellant, therefore, it is hereby repelled. In absence of oral and documentary evidence on record, it is not possible to evaluate the findings recorded by learned trial Court. An idential question arose before me in between Berudan & Ors. vs. Firm Sohan Lal Shiv Narain (1), wherein the judgment and decree passed by learned trial Court was set aside and the case was remanded for de novo trial in the interest of justice and the first appeal was disposed of with the above observation. It is made clear that since the defendant respondent is not present either personally or through his counsel therefore before this Court no attempt could be made for reconstruction of the record which has been weeded out. Since the record was weeded out prior to my decision in case of Berudan & Ors. (supra), no useful purpose would be served to make an inquiry from the learned trial Court under what circumstances, the record of the present appeal has been weeded out without intimation from this Court about the decision of the first appeal as envisaged u/r. 175 of the Rajasthan General Rules, Civil, 1986.
(3.) THE facts and circumstances of the present case are also squarely covered with the facts and circumstances of the case of Berudan & Ors. (supra ). In view of the aforesaid facts and circumstances of the case, I consider it just and proper to set aside the judgment and decree passed by learned trial Court and remand the case back to the learned trial Court with a direction to make a sincere effort to reconstruct the oral and documentary part of the evidence weeded out, with the assistance of plaintiff and defendant, and if it is not possible then to have a de novo trial, in the interest of justice and fair play. The instant First Appeal is finally disposed of with the aforesaid observation. Paries are left to bear their own costs. . ;