Dhrub Narayan Upadhyay, J. - (1.) THIS miscellaneous appeal has been preferred against the judgment dated 29.5.2001 passed by Second Additional District Judge, Giridih and decree signed on 11.6.2001 in connection with Title Appeal No. 33 of 1990, whereby the learned Additional District Judge has been pleased to set aside the judgment and decree dated 31.3.1990 and 18.4.1990 respectively passed by the then Sub Judge -I, Giridih in connection with Title (Arbitration) Suit No. 14 of 1987 and remanded back the case to the court below to decide the suit afresh on the point whether the Award in question is fit to be made rule of the court or not within 6 months from the date of receipt of the judgment of the appellate court and the parties were directed to appear before the court of Sub Judge on or before 30th June, 2001. Learned counsel appearing for the appellant has assailed the impugned judgment on the ground that the case has wrongly been remanded to decide the issues indicated in the judgment because those issues were well decided by the trial court and the findings are based on valid reasoning. It is not expected that the same issues shall again be decided and for that the case is required to be remanded to the trial court. It is further submitted that the suit brought by the plaintiffs before the trial court was also barred by law of limitation and this issue was decided by the trial court. At one point of time, the learned Additional District Judge has said that the trial court has transgressed its jurisdiction by framing various issues like a regular suit, but again the appellate court says that the trial court has not given issue -wise finding. It is further submitted that the trial court has considered all the issues involved in the suit and the same were properly addressed to. The impugned judgment of the appellate court is liable to be set aside and the judgment and decree passed by the trial court is required to be upheld.
(2.) ON the other hand, learned counsel, appearing for the respondents has submitted that the appellants or the persons, who are not party to the arbitration agreement, have not filed any petition before the court challenging the Award as required u/s. 33 of the Arbitration Act (1940). In a suit, where an Award has been brought before the court to make the Award a rule of Court, the trial court has no jurisdiction to decide it as a regular suit, rather, the court will consider the issues with regard to give execution force to such Award passed by the Arbitrators. It is further submitted that the findings of the trial court were challenged by the respondents by filing Title Appeal No. 33 of 1990 and the first appellate court, the learned Additional District Judge, was having jurisdiction to consider the issues on the basis of materials available on record and the appellate court was at liberty to give its independent findings without being influenced by the judgment passed by the trial court. If the appellate court is lacking in passing appropriate judgment and the matter is not decided afresh by the trial court, the respondents/plaintiffs shall not be made remedy less. Therefore, if the issues involved in the suit if finally decided afresh, there will be no harm and both the parties shall have one more chance to place all their cards before the trial court. I have gone through the judgment passed by the Additional district Judge, Girdih in connection with Title Appeal No. 33 of 1990 and I have also gone through the judgment and decree of the trial court passed in Title (Arbitration) Suit No. 14 of 1987. On careful consideration of the judgment passed by the appellate court, I feel no hesitation to hold that the first appellate court has failed to discharge its responsibility in proper perspective. It is often seen that the appellate court in stead of giving independent findings on the issues involved or on the judgment under challenge, take a easier path by remanding the case to the trial court to decide it afresh. If the appellate court will remand the case in a mechanical manner without applying its mind, it would cause hardship to both the parties and the matter will again be delayed. Undisputedly the first appellate court is a court of facts and they will have to discharge their obligation in accordance with law by exercising power conferred under Order XLI of the Code of Civil Procedure or under any other law, having appellate jurisdiction.
(3.) IN the present case the learned Additional District Judge, though has given his opinion on certain issues, but in stead of affirming those issues in the judgment he has shown his disagreement with the decision of the trial court and has chosen to remand the matter back to the trial Court, which is not a good approach.;