The appellate court must decide on merits if sufficient evidence exists, rather than remanding for a de-novo trial when the trial court has already considered the counter-claim.

JUDGMENT :

Yarenjungla Longkumer, J.

Heard Mr. C. Lalfakzuala, learned counsel for the applicant and Mr. Benjamin Lalthlamuana, learned Government Advocate for the State respondent.

1. This is a second appeal filed under Section 100 of the Code of Civil Procedure (CPC for short), 1908, against the Impugned Judgment and Order dated 07.09.2023 passed by the Additional District Judge-1, Aizawl in RFA 11 of 2011, arising out of Civil Suit No. 111 of 2011. The appellant is aggrieved by the Impugned Judgment and Order dated 07.09.2023 in as much as the First Appellate Court instead of deciding the case on merit remanded the case for a de-novo trial from the stage of settlement of issues in relation to the counter-claim made by the defendants 1 and 2/respondent No. 1 and 2.

2. The appellant has challenged the Impugned Judgment and Order dated 07.09.2023, on the ground that the First Appellate Court has failed to satisfy itself as to whether remand of the case is attracted under the facts and circumstances of the case either under Order XLI, Rule 23 CPC or Order XLI, Rule 23-A CPC.

3. The contention of the appellant herein, is that the First Appellate Court was erroneously of the view that the counter-claim preferred by the defendant Nos. 1 and 2/respondent No. 1 and 2 was not considered by the court of learned Civil Judge Senior-IV, Aizawl. Hence, it is prayed that the Judgment Order dated 07.09.2023 passed by the learned First Appellate Court/Ld. Additional District Judge-1, Aizawl in RFA No. 11 of 2021 may be set aside and quashed. And further, prays that the learned First Appellate Court may be directed to consider the RFA 11 of 2011 on merit.

4. Steps for notice of service upon respondent No. 1 and 2 were taken by the appellant, however, the service report/AD cards were returned unserved. Accordingly, this Court directed the appellant to take steps through dasti service. Thereafter, by an order dated 23.01.2025, this Court has stated that the notice upon respondent Nos. 1 and 2 are declared to be complete. Since the respondent Nos. 1 and 2 remained unrepresented, this Court found it fit to proceed with the matter in the absence of respondent Nos. 1 and 2 as notice was deemed served. Mr. Benjamin Lalthlamuana, learned Government Advocate appears for the respondent Nos. 3 to 7.

5. Learned counsel Mr. C. Lalfakzuala, learned counsel appearing for the appellant submits that this Court admitted the Appeal and the following substantial question of law were formulated by this Court on 09.09.2024 :-

”i) Whether the First Appellate Court erred in law in remanding the case for denovo trial as the suit in question had not been disposed of on a preliminary point by the Trial Court and considering that the decree has also not been reversed in appeal?

ii) Whether the First Appellate Court has sufficient material or evidence on record to determine the case on merit?”

6. He has drawn the attention of this Court to the Impugned Judgment wherein, at paragraph-11 of the Judgment and Order the learned First Appellate Court has stated that the Judgment and Order dated 18.10.2021 along with the decree dated 18.10.2021 passed by the learned Civil Judge Senior-IV, Aizawl in Civil Suit 111 of 2011 is hereby, set aside and quashed due to non-consideration of counter-claim preferred by the appellant/defendant No. 1 and No. 2. The suit was then sent back for trial de-novo from the stage of settlement of issues in relation to the counter- claim made by the appellant/defendant No. 1 and 2. With this reasoning and findings the learned First Appellate Court remanded back the suit for de- novo trial. Learned counsel for the appellant states that this remand was against the provision of Order XLI, Rule 23 and Order XLI, Rule 23-A of the Code of Civil Procedure, Act 1908. Learned counsel has referred to the provision of Order XLI rule 23, Order XLI Rule 23-A and Rule 24 of the CPC. Order XLI, Rule 23 which reads as under:

“23. Remand of case by Appellate Court : Where the Co