Sobhagmal Jain, J. - (1.) This appeal by the defendant is directed against the Order dated August 1, 1979, of the Civil Judge, Churu, by which the learned Civil Judge remitted the case to the Munsif, Churu, for de novo trial.
(2.) The only contention urged in this appeal is that while allowing the plaintiffs application filed under Order 41, Rule 27, C.P.C., the first Appellate Court should have followed the procedure of Rule 28 and should not have remitted the entire case for de novo trial to the Trial Court. Order 41, Rules 27 and 28 reads thus:- "27. Production of additional evidence in Appellate Court. - (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if - (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that not withstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." "28. Mode of taking additional evidence - Whenever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court." Apparently, the stage for setting aside the decree had not reached as while taking additional evidence, the first Appellate Court was required to follow the procedure of Order 41, Rule 28, which in terms provides that the Appellate Court While allowing additional evidence may either itself take such evidence or direct the court below to take the same and send it to the Appellate Court. The stage of considering the question whether the decree of the Trial Court needs to be reversed or affirmed, would arise after the additional evidence comes on record.
(3.) Accordingly, the appeal is allowed. The order of the Civil Judge remitting the case to the Trial Court for de novo trial is set aside and the first Appellate Court is directed to follow the procedure of Order 41, Rule 28 in taking the additional evidence. Parties shall bear their own costs of appeal in this Court. Appeal allowed.;