This appeal, preferred under Order 43 Rule 1 of Code of Civil Procedure, 1908, is against the judgment and order dated 22.04.2008, passed by District Judge, Haridwar, in Civil Appeal No. 27 of 2004, Ram Naresh Versus Smt. Kaushlya Devi and others, whereby the appeal was allowed and judgment and decree dated 23.09.2004, passed by Civil Judge (Sr. Division), Haridwar, in Original Suit No. 126 of 1997, Smt. Kaushlya Devi Versus Malkhan and others, has been set aside and suit has been remanded for disposal before trial court.

Brief facts giving rise to the appeal are that a suit for specific performance of contract was filed in the year 1997, registered as suit No. 126 of 1997, before Civil Judge (Senior Division), Haridwar, against the respondents. The aforesaid suit was decreed ex-parte by the trial court in favour of appellant/plaintiff vide order dated 19.08.2000 (Annexure no. 3 to the appeal). Feeling aggrieved by said order dated 19.08.2000, the defendant-Malkhan Singh, preferred a civil appeal No. 10 of 2002, Malkhan Singh Versus Smt. Kaushlya Devi, before District & Sessions Judge, Haridwar. Vide order dated 30.07.2002 (annexure no. 4 to the appeal), District & Sessions Judge, Haridwar, allowed the appeal and the matter was remanded back to the trial court and appellant was given an opportunity to adduce evidence. Thereafter, suit was again heard and decided on merit vide order dated 23.09.2004 by Civil Judge (Senior Division), Haridwar. Aggrieved by order dated 23.09.2004, passed by the trial court, civil appeal No. 27 of 2004, was preferred by Ram Naresh (son of original defendant-Malkhan Singh). Learned District Judge after hearing the parties, vide order dated 22.04.2008, again remanded the suit to the trial court on the ground that the issues have not been properly framed. The issue No. 1 framed by Civil Judge (Senior Division), Haridwar is as under:-

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Learned District Judge, Haridwar, on the basis of pleadings of the parties, has observed in its order that issues ought to have been framed as under:-

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Learned counsel for the appellant placed reliance on the judgment reported in JT 2007 (1) SC 503, Shanti Devi Vs. Daropti Devi and others, wherein in para 15 it has been held as under:-

“15. In the aforementioned situation, in our opinion, it would have been proper for the High Court not to remit the matter in its entirety, which could have been done by the court in exercise of its jurisdiction under Order XLI Rule 23 or Order XLI Rule 23 A of the Code of Civil Procedure. The impugned judgment must in the aforementioned situation be held to have been passed in terms of Order XLI Rule 25 of the Code of Civil Procedure.”

Learned counsel for the appellant, also placed reliance on the judgment reported in JT 2008 (7) SC 247, Municipal Corporation Vs. Sunder Singh, wherein in para 10 and 11, it has been observed as under:-

“10. Order XLI Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court.

11. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order XLI Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.”

Reliance has also been placed on yet another judgment, reported in JT 2002 (5) S