JUDGMENT :

1. The appellant has preferred this Appeal from Order under Section 104 read with Order XLIII, Rule 1 (r) of the Code of Civil Procedure against the judgment and decree dated 30.7.2016 rendered by learned Additional District Judge in Regular Civil Application No.47 of 2013, whereby learned Additional District Judge has set aside the judgment and decree passed by learned 8th Additional Senior Civil Judge, Bharuch, dated 1.5.2013 passed in Special Civil Suit No.103 of 2005 with a direction to consider the evidence produced by the defendant and also to consider the evidence produced by the plaintiff thereon and to decide the suit afresh.

2. It is the contention of the appellant, who is the original plaintiff, that he has preferred Special Civil Suit No.103 of 2005 before learned Principal Civil Judge, Bharuch, against the respondents herein which came to be partly decreed in favour of him and the respondents were directed to give vacant and peaceful possession of the suit property to him. It is contended that being aggrieved with the said judgment and decree, the respondent preferred Regular Civil Application No.47 of 2013 before District Court, Bharuch, wherein by the impugned judgment and decree dated 30.7.2016, learned appellate Court has set aside the trial Court decree and remanded the matter to the trial Court. It is contended that the appellate Court ought to have considered the evidence on record and decided the appeal itself. It is contended that the appellate Court has erred in interpreting the contents of the challan produced at Exh.21, which was not challenged by the respondent. It is also contended that the appellate Court has misread the documentary evidence and has wrongly come to the conclusion that the respondent has produced document at Exh.58, which has not been considered by the trial Court. It is also contended that the impugned judgment and order of the first appellate Court is without any justifiable reasons and it is contrary to the Order XLI, Rule 23 of the Code of Civil Procedure. It is prayed to set aside the impugned judgment and decree of the first appellate Court.

3. Heard learned advocate Mr.Archit P. Jani for the appellant and Mr.Chirag Patel, learned advocate for the respondents.

4. The main argument of learned advocate Mr.Jani is that the observations of the first appellate Court regarding non-consideration of the documentary evidence alleged to be produced by the defendants-respondents by the trial Court has no basis as the defendants-respondents have not taken care to get it exhibited before the trial court. He has also submitted that as per the Order XLIII, Rule 23 and 23 (A), power could be exercised only in those circumstances. According to him, in this case, trial Court has not decided the suit merely on the preliminary ground and, therefore, there was no scope of application of Rule 23 of Order XLIII. He has submitted that even under Rule 23 (A) of Order XLIII, the facts of the matter does not Call to remand the matter to the trial Court. Alternatively, he has submitted that if the appellate Court came to the conclusion that matter needs to be remanded to the trial Court, then in such cases, appellate Court should not have expressed any opinion on the merits of the case. He has submitted that in this case, first appellate Court has acceded its jurisdiction. He has submitted that the impugned judgment and decree of the first appellate Court be set aside and first appellate Court be directed to decide the appeal itself. He has relied upon the following decisions in support of his arguments.

(i) Syeda Rahimunnisa v. Malan Bi (dead) by legal representatives and Another reported in (2016) 10 SCC 315.

(ii) J. Balaji Singh v. Diwakar Cole and Others reported in (2017) 14 SCC 207.

(iii) Kapilbhai Ishwarbhai Patel v. Dineshbhai Manubhai Patel decd. Through heirs, reported in (2016) 3 GLH 334.

4.1 In view of aforesaid submissions and decisions, he has prayed to allow present appeal.

5. Per contra