JUDGMENT :

Anil Kshetarpal, J. (Oral) - The correctness of the First Appellate Court's order while allowing the respondents application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') and remitting the matter back to the trial Court for fresh decision is assailed by the plaintiff. The dispute is with regard to the inheritance of property left behind by late Sh. Chuhar Singh. The plaintiff and defendants are successors in interest of common ancestor late Sh. Chuhar Singh. The plaintiff filed a suit claiming that late Sh. Chuhar Singh executed a registered Will dated 03.03.1981 in favour of the plaintiff and defendant No.l. The defendants contested the suit, which was decreed. During the course of evidence, the defendants led evidence to prove that the Will dated 03.03.1981 was revoked, however, the trial Court ignored the evidence of revocation of Will on the ground that this fact has not been included in the pleadings by the defendants. The defendants filed first appeal against the judgment and decree passed by the trial Court on 15.03.2015. During the pendency of the appeal, the defendants filed application for permission to amend the plaint in order to aver about the revocation of the Will, which as already noticed, has been allowed. In the same, the First Appellate Court has remitted the matter back to the trial Court.

2. This Bench has heard the learned counsel representing the parties at length and with their able assistance perused the paperbook.

3. The learned counsel representing the appellant has made the following two submissions

4. Per contra, the learned counsel representing the respondents submits that evidence with regard to the revocation of Will dated 03.03.1981 has already been led and the First Appellate Court has only permitted the defendants to include the assertions in the written statement, which has already been filed. He submits that the plaintiff may be required to be given an opportunity to cross-examine defendants witnesses. Hence, re-trial is necessary.

5. This Court has considered the submissions of the learned counsel representing the parties.

6. With respect to the first submission of the learned counsel representing the appellant, it may be noticed that the defendants by way of an amendment are not withdrawing their admission. They are only asserting a subsequent development, which is with respect to revocation of the Will. Moreover, the correctness of revocation of Will is yet to be established. The trial Court has refused to look into the document evidencing revocation of Will on the ground that it is beyond the pleadings. This inadvertent error has been allowed to be rectified. This Court does not find it appropriate to interfere with the same.

7. However, there is merit in the second submission of the learned counsel representing the appellant.

8. In SAO-57-2023, titled as "Abdul Quddoors Vs. Ajit Singh (since deceased) through legal representatives and another", decided on 08.01.2024, this Court has examined the scope and enabling power of the Appellate Court to remand the case back to the trial Court, which reads as under:-

9. As per the aforesaid judgment, the First Appellate Court can send back the case to the lower Court for fresh decision only when the judgment of the lower Court is set aside on merits and re-trial is considered necessary.

10. In the present case, the impugned order does not fulfill any of the parameters. Hence, the First Appellate Court's impugned order remitting the above mentioned matter back to the trial Court is partly set aside to the extent which remits the matter back to the trial Court.

11. The First Appellate Court is requested to proceed with the case in accordance with the provisions of law.

12. The first appeal is restored to its original number.

13. The parties through their learned counsel are directed to appear before the First Appellate Court on 12.08.2024.

14. All the pending miscellaneous applications, if any, are