The appellate Court has the power to pass any decree and make any order which ought to have been passed or made, as per the provisions of Order XLI, Rule 26 and Rule 33.

K.S. Rathore, J.-This writ petition is directed against the order dated 10-8-2000 passed by the Additional District Judge No. 2, Jaipur City, Jaipur in civil first appeal No, 48/96. The appellate Court vide its order dated 10-8-2000 remanded back the matter to the trial Court for deciding the issue whether the disputed suit premises was given for residential purposes and the tenant is using the premises for commercial use or not i.e. other than the purpose for which the suit premises was given on rent by the plaintiff respondent.

2. Learned Counsel for the petitioner-defendant submits that the matter was fixed for pronouncement ofJudgment and placed the order sheets for perusal of this Court. Despite pronouncing the Judgment , the appellate Court has passed the impugned order remanding the matter back to the trial Court for fresh adjudication on the issue raised by the plaintiff-respondent through its application dated 9-8-2000.

3. Thepetitioner earlier assailed the impugned order before this Court in revision petition No. 1086/2000, which was decided by this Court vide Judgment dated 20-1-2004 and observed as under :-

“The defendant tenant petitioner filed the regular appeal against the said Judgment and decree of the learned trial Court. On 10th of August, 2000 the learned Additional District Judge No. 2, Jaipur city, Jaipur in the appeal passed the impugned Judgment , The appeal was kept pending and additional issue has been framed which has been remitted to the learned trial Court with the direction to record the evidence thereon of the parties and Its finding and return the same to the first appellate Court. Thus, the regular appeal has not been finally decided and it is pending. It is only an interlocutory order which can be challenged in the regular appeal to be filed against the final Judgment and decree in the appeal. In view of these facts no interference in this revision petition can be made.

Accordingly this revision petition fails and the same is dismissed.”

4. The petitioner preferred this writ petition assailing the same impugned order dated 10-8-2000 on the ground that the appellate Court has seriously erred in remanding the matter back to the trial Court for fresh adjudication for the issue which was not dealt with at the initial stage. In support of this submission, he placed reliance on the Judgment rendered in case of Arjun Singh vs. Mohindra Kumar reported in, AIR 1964 SC 993 wherein the Hon’ble Supreme Court has held as under :-

“When once the hearing starts, the Code contemplates only two stages in the trial of the suit:

(1) where the hearing is adjourned or (2) where the hearing is completed. Where hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that 0. XX, Rule 1 permits Judgment , to be delivered after an interval after the hearing is completed. It would, therefore, follow that after the stage contemplated by 0. IX, Rule 7 is passed the next stage is only the passing of a decree which on the terms of 0. IX. Rule 6 the Court is competent to pass. And then follows the remedy of the party to have that decree set aside by application under 0. IX, Rule 13. There is thus no hiatus between the two stages of reservation ofJudgment and pronouncing the Judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of 0. IX, Rule 7, As provision has been made for every contingency, there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of Justice.”

5. Learned Counsel for the petitioner also placed the photocopy of the order sheets and submits that on 5-8-2000, the matter was fixed for hearing the final argument. On 99-8-2000, after 4 days, the Court has entertained the application filed by the petitioner and the matter was remanded back to the trial Court vide impugned order dated 108-2000 on the new issue a