The appellate court's power of remand of a suit for its fresh judgment by the trial court should be exercised after considering the evidence and giving a detailed judgment.

S.N.Pathak, J.

1. This Miscellaneous Appeal is directed against the order dated 18-8-1992.

2. In a nut-shell, relevant facts of this appeal are that the title suit No. 23/77/24/88 was filed by the respondents of this appeal seeking declaration of title. The suit was, however, dismissed. Then the plaintiff-respondent filed first appeal No. T.A. No. 40/88/21/91 in which the impugned order was passed. By the impugned order learned Additional Judge remanded the suit to the trial Court for framing an issue whether the suit suffered from non-joinder of necessary party. It was directed by the impugned order that after framing this issue the trial Court shall pass a fresh judgment.

3. Before me it was submitted by the appellantslawyer that so far the nonjoinder of the parties to be an issue,it is for the parties themselves to raise in the trial Court. None of the parties had pleaded that the suit suffered from non-joinder or mis-joinder of parties: Therefore, there was no necessity to frame this issue.

4. On perusal of the impugned order, it transpired that the appellate Court held that W.S. of one of the defendants as also in the evidence of some of the defendants it was stated that the defendants had given some of these plots in favour of Harijans of the village. So, it was necessary that these Harijans may be impleaded as parties to the suit for effective decision. In this connection, it is further to be noted that the issue of non-joinder of some necessary parties was raked up by the plaintiff-appellants in view of W.S. of the defendant. I fail to understand why the plaintiff-respondent had failed to raise this issue in the trial Court itself when it was raised in the W.S. of defendant as also in the evidence. The plaintiffs allowed the suit to be dismissed on merit instead of seeking amendment of the plaint to add certain necessary parties. The appellate Court also in its remand order did not state in its operative part that Harijans may be added as party to the suit. The remand simplicitor directing the trial Court to frame an issue regarding non-joinder and then to decided the suit afresh would result in inevitable dismissal of the suit because by the plaintiffs themselves it was alleged that some Harijans were on the suit land. I am, therefore, intrigued as to what purpose will be served by remanding the suit for framing the issue regarding non-joinder when the suit stood dismissed on merit. Morever, the appellate Court did not discuss the evidence after hearing the cases of the parties and did not give any finding whether the plaintiff was entitled to the relief sought for. So, I think that the remand order passed just by way of routine order instead of a detailed judgment suffers from some kind of illegality and irregularity. The appellate Court has not taken into consideration the provisions relating to its power of remand of a suit for its fresh judgment by the trial Court.

5. In the result, this miscellaneous appeal is allowed and the impugned order is set aside. The appeal is remitted back to the appellate. Court for passing a fresh detailed judgment after discussing the cases of the parties including the evidence on record. However, in the facts and circumstances, there shall be no order as to cost of this appeal.