The main legal point established in the judgment is that the appellate court should not remit the case to the trial court if the evidence on record is sufficient to decide the matter, and it should itself decide the matter or frame additional issues if necessary.

JUDGMENT

1. This misc. appeal under Order 43 Rule 1(u) read with Section 151 CPC has been directed against the impugned judgment dated 04.10.2001 passed by the Court of Additional District Judge, Aklera, District Jhalawar in regular appeal No.8/2000 by which the appeal filed by the defendant-respondent was allowed and after setting aside the judgments dated 04.06.1994 and 18.10.2000 passed by the Civil Judge (Junior Division), Jhalawar in original suit No.95/1993, the case was remitted back to the trial Court for fresh adjudication.

2. Facts, in brief, of the case are that the plaintiff (appellant herein) instituted a suit for perpetual injunction under the Specific Relief Act for removal of wall against the defendant before the Court of Civil Judge (Junior Division), Aklera, District Jhalawar, which was decreed on 04.06.1994 and the defendant was directed to remove the wall as described in Para No.1 of the plaint and not to cause any hinderance or interference with the possession of the plaintiff and the defendant was further directed to pay cost of Rs.500/-.

3. Feeling aggrieved by the judgment dated 04.06.1994, the defendant submitted Regular First Appeal before the Court of Additional District Judge, Aklera, District Jhalawar and also submitted an application under Order 41 Rule 27 and 28 CPC for taking certain documents on record and prayed for remanding the matter to the trial Court for fresh adjudication of the suit after giving opportunity of hearing to both sides to lead their evidence and to decide the suit afresh. And accordingly the suit was remanded back by the Appellate Court to the trial Court vide judgment dated 04.01.2000.

4. After remand of the matter, no fresh evidence was produced by the defendant before the trial Court, hence, the opportunity of defendant for producing evidence was closed on 12.05.2000 and case was posted for final arguments.

5. Thereafter, defendants submitted applications under Sections 151 and 152 CPC, which were dismissed by the trial Court vide order dated 02.06.2000 and 11.10.2000 respectively and finally arguments were heard and on the basis of issues and the evidence available on the record, the trial Court decreed the suit vide judgment and decree dated 18.10.2000 directing the defendant to remove the wall and not to cause any obstruction in the possession of the plaintiff with regard to the disputed land mentioned in Para No.1 of the plaint.

6. Aggrieved by the judgment and decree dated 18.10.2000, the defendant submitted Regular First Appeal before the Court of Additional District Judge, Aklera, District Jhalawar and the same was allowed vide judgment and decree dated 04.10.2001 and again the matter was remanded back to the trial Court with a direction to frame additional issue and to decide it afresh after affording opportunity of hearing to both sides.

7. Feeling aggrieved by the impugned judgment and decree dated 04.10.2001, instant appeal has been submitted.

8. Learned counsel for the appellant argued that there was no occasion with the Appellate Court to pass the judgment of remand. Both parties have gone to the trial Court fully knowing the rival case and had led all the evidence in support of their case. No request for framing of additional issue was made before the trial Court when the suit remained pending before it for a considerable long time and on the basis of the evidence, the judgment and decree was passed on 04.06.1994.

9. Counsel further submitted that against the said judgment and decree dated 04.06.1994 the defendant submitted Regular First Appeal before the Court of Additional District Judge, Aklera, District Jhalawar and the matter was remitted back to the trial Court with certain directions, which were not complied with by the defendant and no fresh and additional evidence was produced on the record. Hence, the trial Court rightly decreed the suit again in favour of the plaintiff. Counsel further submitted that there was no ground available with the Appellate Court