JUDGEMENT:

This appeal is directed against the order of remand made in A.S.No.38 of 1992 dated 11.08.2004 on the file of III Additional District Judge, Guntur setting aside the judgment and decree passed in O.S.No.124 of 1989 on the file of III Additional Munsif Magistrate, Guntur dated 17.02.1992 and remanding the matter to the trail Court for disposal according to law on the ground that on 16.02.2004, while remanding the matter in S.A.488 of 1992 on the file of this Court, a direction was made to give permission to the appellant therein i.e. first respondent in this appeal to summon the second respondent therein i.e., 2nd respondent in this appeal and adduce necessary evidence on his behalf.

2. It is the contention of the learned counsel for the appellants that in fact no such direction was given in the second appeal and the first appellate Court misconceived the directions given by this Court in the second appeal and without considering the merits of the evidence adduced, it is not proper for the first appellate Court to remand the matter to the lower Court.

3. No representation has been made on behalf of the respondents.

Hence their arguments are closed.

4. It is to be mainly considered as to whether the remand of the matter ordered by the first appellate Court to the Trial Court on the said ground is proper and whether it is tenable or not.

(i) In order to consider the point, the observations said to have been made by this Court in S.A.No.488 of 1992 are to be examined and they read as follows:

Considering the submissions made on either side and also on perusal of record, it is seen that the trial court after holding that the plaintiff failed to prove Exs.A1 to A.3 since no witness has been examined in proof thereof, has accepted Ex.B3, B4 and B6 apart from the oral evidence of D.Ws 3, 4 and 5 and gave cogent reasons in support of the finding, in favour of the defendant No.1 and also against the respondent No.1- plaintiff. Whereas the lower appellate Court except taking into consideration the Exs.A1, A2 and A3 and proceeding on the basis that since the defendant No.2 who is the author remained ex parte, the documents remained unchallenged and undenied and therefore stood proved. However, on a reading of the judgment of the lower court, it is seen that none of the documents filed on behalf of the appellant especially Ex.B3, B4 and B6 and even oral evidence as accepted by the court below from that of D.Ws 2,3,4 and 5 have come up for consideration. It is also seen from the judgment that the reasons as given by the trial court having been made proper by the lower appellate court while reversing the decree, nor has been given any reasons in support as to why and how the aforesaid documents Exs.B3, B4 and B6 cannot be accepted. Having regard to the same, the mater requires reconsideration for disposal on merits, after taking into consideration the entire evidence and material on record.

The Second Appeal is accordingly allowed and the matter is remitted back to the lower appellate Court for fresh disposal after giving notice and opportunity to both sides. No costs.

5. There is no specific direction given by this Court in the second appeal while remanding the matter to the first appellate Court to give any opportunity to the first respondent herein to summon the second respondent herein and adduce necessary evidence.

6. Therefore, the remand of the matter to the trial Court by the first appellate Court, on that count, is not tenable. Further the first appellate Court should have examined the material on record and adjudicated the matter on its own merits and that, only in case the first appellate Court found that there was necessity to remand the matter on valid grounds, then only, the first appellate Court should have remanded the matter to the trial court. Therefore this appeal is tenable and accordingly it is to be disposed of.

7. In the result, the appeal is allowed setting aside the judgment and decree of the first appellate Court a