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Judgment
Sudhanshu Dhulia, J.
The plaintiffs had filed a suit for permanent injunction against the defendants. The plaintiffs and the defendants are real brothers and sisters. The
suit was partially decreed against which the defendant no. 1 filed an appeal before the appellate court.
The trial court had framed the six issues and gave its findings on Issue Nos. 1 and 2 in favour of the plaintiffs. As far as Issue Nos. 3 and 4 were
concerned, the same were struck off but thereafter the appellate court came to the conclusion that the striking off of the issues no. 3 and 4 was not
proper and had remanded the case for adjudication afresh on these two issues and have framed two additional issues. One of the issues was reframed
by the appellate court. Aggrieved by this order, the appellants/plaintiffs have filed the present appeal before this Court.
In this matter, certain technicalities have been raised by the learned counsel for the respondents which are regarding the very maintainability of the
appeal itself.
However, the prime consideration of this Court at this stage is that the matter remained pending for more than 10 years and in my considered
opinion, the appellate court should not have remanded back the matter to the trial court considering the nature of the suit for the simple reason that the
appellate court itself has the same powers as the trial court. It has powers not only to reframe the issues but also to frame additional issues by giving
opportunity to any of the parties to adduce fresh evidence. These cases should have been decided, after framing the new issues. The appellate court
ought to have decided the lis in the appeal, instead of remanding the matter.
In view of the above, the appeal is allowed. The matter is remanded back to the appellate court where the parties would be at liberty to adduce
their evidence on the issues so framed by the appellate court. The appellate court shall exercise its power under Order 41 Rule 27 CPC while deciding
the case on filing of additional evidence at the hands of the defendants as the learned counsel for the defendants/respondents has very fairly submitted
that his only objection at this stage is that the defendants should be permitted to adduce their evidence before the appellate court and the appellate
court may allow the evidence unless the same is being sought only for dilatory tactics. Let the matter be decided within a period of six months from
the date a certified copy of this order is received by the appellate court.
The impugned judgment and order dated 17.03.2010 is set aside to the extent indicated above.