JUDGMENT AND ORDER (Oral)

Date : 30-05-2019 Heard Mr. R. Goswami, learned counsel appearing for the appellants. None appears for the respondent. The learned counsel for the respondent did not appear even yesterday when the matter was called up for hearing although the names of the counsel have been shown in the Cause List.

2. This Second Appeal from Orders (SAO) is directed against the judgment and order dated 22.08.2008 passed by the learned Additional District Judge No.1, Tinsukia in Money Appeal No.3/2007 whereby, the learned Lower Appellate Court had set aside the judgment and decree dated 19.01.2007 passed by the learned trial court in Money Suit No.29/1999 and remanded the matter for re-trial of the suit.

3. The facts of this case, in a nutshell, are that the respondent is the owner of a vehicle (Mini Bus) bearing No.AS-01/7729 which was insured with the appellant Insurance Company under Policy No.3153010503741. The insurance policy was valid during the period from 28.03.96 to 27.03.97. According to the respondent, his vehicle had met with an accident on 11.05.1996 and was badly damaged. An F.I.R. was lodged with the Tinsukia Police Station based on which, G.D. Entry No.288/96 was made and the matter was also informed to the appellant No.2. Accordingly, the appellant No.2 had deputed a surveyor to inspect the damaged vehicle. After the inspection was completed, the vehicle was removed by the police from the Thana premises and thereafter, the same was sent to a garage for repairing. According to the respondent, the total expenditure incurred in the repairing of the damaged vehicle was Rs.1,45,629.76 which included the cost of the spare parts, labour charges and other expenses. On completion of the repairing works, the respondent had requested the appellants to conduct a fresh inspection of the vehicle for settling the insurance claim but when the appellants failed to do so, the respondent as plaintiff had filed Money Suit No.29/1999 in the Court of learned Civil Judge, Tinsukia for recovery of Rs.1,45,629.76 and for other consequential reliefs. By the judgment and decree dated 19.01.2007, the suit filed by the respondent was decreed as prayed.

4. Aggrieved by the judgment and decree passed by the learned trial court, the appellants had preferred Money Appeal No.3/2007 which was disposed of by the learned Lower Appellate Court by setting aside the decree passed by the learned trial court and remanding the matter for re-trial of the suit.

5. By referring to the impugned judgment and order dated 22.08.2008, Mr. Goswami submits that there was no justifiable ground for the learned Lower Appellate Court to remand the matter for re-trial. Referring to the provisions of Order XLI Rule 24 CPC Mr. Goswami submits that there were sufficient materials available on record permitting the learned Lower Appellate Court to determine the case finally and as such there was no justifiable ground for ordering a de-novo trial of the suit. In support of his above argument Mr. Goswami has placed reliance on a decision of the Supreme Court rendered in the case of Syeda Rahimunnisa vs. Malan Bi (Dead) by Legal Representatives and another reported in (2016) 10 SCC 315 and another decision of this Court in the case of R. K. Tombi alias Tombisana Singh vs. R. K. Maipaksana Singh and others reported in 2002 (2) GLT 186.

6. I have considered the arguments advanced by the appellants’ counsel and have also gone through the materials available on record.

7. After a careful reading of the impugned judgment and order dated 22.08.2008, I find that the learned Lower Appellate Court has set aside the decree passed by the learned trial court and remanded the matter for re-trial by holding that the plaintiff should be given another opportunity to examine some of the witnesses for proper adjudication of the claim. It is, however, not clear as to whether the respondent/ plaintiff had made any such prayer before the lower appellate court. The impugned order dated 23.08.20