YADAV, J. - (1.) THE present second appeal under Sec. 100 CPC has been filed against the judgment and decree dated 8. 4. 99 passed by Additional District Judge, Nimbaheda in Civil Appeal No. 15/93 whereby the appeal filed by the plaintiff was allowed and the judgment of the Civil Judge (Sr. Division) Nimbaheda dated 16. 9. 1993 passed in Civil Original Suit No. 167/88 was set aside and the suit for evic-tion was decreed.
(2.) HEARD. Perused the judgments passed by both the courts below. At the first instance it is strenuously urged by the learned counsel for the appellants that the learned Civil Judge (Sr. Division) to whom the case was remitted for redetermination on issue No. 2 by the learned first appellate court under O. 41 R 25 CPC has no pecuniary jurisdiction to decide the issue. The aforesaid argument raised by the learned counsel for the appellants is not acceptable to me in view of amended sub-sec. (2) of Sec. 21 CPC, which clearly provides that no objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. In the present case it goes without saying that the tenant-defendant appe-llants did not raise the question of pecuniary jurisdiction before the learned Civil Judge (Sr. Division) Nimbaheda where they had got the earliest possible opportunity. On the other hand they chose to allow the learned Civil Judge (Sr. Division) to record statements of witnesses and arrive at a positive finding relating to reasonable and bonafide necessity. However, when the learned Civil Judge (Sr. Division) held the reasonable and bonafide necessity in favour of the land lord, the tenant-defendant-appellant started to raise the dispute of pecuniary jurisdiction of learned Civil Judge (Sr. Division) before the learned first appellate court. I have no hesitation to hold that the tenant-defendant appellants cannot be allowed to raise such plea of pecuniary jurisdiction either before the first appellate court or before this Court in second appeal in view of sub-sec. (2) of Sec. 21 CPC. The contention relating to pecuniary jurisdiction raised by the learned counsel for the appellants has been raised merely to be rejected and it is hereby rejected.
(3.) IT is next contended by the learned counsel for the appellant that the learned first appellate court has committed substantial error of law in not framing an issue while remanding the case to learned Civil Judge (Sr. Division) for redetermination of issue No. 2 allowing both the parties to adduce evidence in support of their respective claims. I am afraid the aforesaid argument of the learned counsel for the appellant is also not acceptable in view of the provisions envisaged under O. 41, R. 25 CPC. Order 41 Rule 25 of the C. P. C. provides that where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required. From the phraseology used under O. 41 R. 25 CPC it is, evident that the learned first appellate court is entitled to remit an issue to trial court in case it arrives at a conclusion that the trial court has omitted to frame an issue. Secondly, if the learned first appellate court is objectively satisfied that the trial court has fai-led to try any issue properly it can remit the issue and finally if the learned first appellate court is satisfied that the trial court has failed to determine any question of fact which appears to it essential to the right decision of the suit upon merits it can remit such issue for decision to the learned trial court. Here in the present case from perusal of the remand order dated 6. 2. 98 it is evident that the learned first appellate court after taking into account all the relevant consideration arrived at the conclusion that the learned trial court has not properly determined Issue No. 2 and having been of the opinion that the issue No. 2 has to be redetermined, referred the matter to the learned trial court to redetermine issue No. 2 in the light of fresh evidence adduced by the parties in support of their respective claims. In my considered opinion the learned first appellate court has committed no error of law in recording the aforesaid finding and such finding does not require interference by this Court under limited scope of Sec. 100 CPC. ;