IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO No.84 of 2001. Decided on : 12.03.2009. Ravinder Chadha and another ……Appellants Versus …..Respondents Saroj and others Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Appellant : Mr. K.D. Sood, counsel for the Appellants For the respondents : Mr. B.K. Malhotra, counsel for the respondents __________________________________________________________ Kuldip Singh, Judge(Oral): The predecessor of the respondents had filed suit against appellants for declaration with consequential relief for permanent prohibitory injunction. In view of the order which I, ultimately, intend to pass in the appeal, it is not necessary to give facts in detail. The suit was for declaration that predecessor of respondents was the exclusive owner of the suit property and the revenue entries showing appellants as co-owners are wrong, a prayer for consequential relief of permanent prohibitory injunction was also made. The suit was contested by the appellants by taking some preliminary objections. They took the main defence in the suit that the land was jointly owned by the parties and the appellants have right to get it partitioned. The suit was dismissed by the learned Sub Judge(II) Kangra on 07.04.1999. Ripudaman filed an appeal and in the appeal an application under Order 41 Rue 27 CPC 2 was also filed. The learned District Judge formulated the following points for determination of the appeal. (1) Whether the application U/O 41 R 27 CPC is liable to be allowed? (2) Whether the findings of the ld. Trial court are sustainable in the eyes of law? Both the points were answered in favour of the respondents, the appeal was allowed and the case was remanded to trial Court as per the operative part of the impugned Judgment. 2. I have heard Mr. K.D. Sood, learned counsel for the appellants and Mr. B.K. Malhotra, learned counsel for the respondents and have gone through the record. Mr. K.D. Sood, learned counsel for the appellants has submitted that the learned District Judge has erred in allowing the first appeal and setting aside the findings of the learned trial Court with a direction to the trial Court to decide the case afresh. He has submitted that the appellants have no objection if the documents Ext. P-1 to P-30 or Ext. D-1 to D-30 are taken on record and read in evidence. He has also submitted that after allowing application under Order 41 Rule 27 CPC the learned District Judge should have himself decided the appeal, more particularly, when no additional issue was framed nor there is a finding to the effect that re-trial of the case is necessary. The trial Court had not decided the suit on some preliminary point. In these circumstances, the learned District Judge should have decided the appeal himself even if he had allowed additional evidence application. The learned counsel for the respondent has submitted that the remand order has not caused any prejudice to the appellants. The trial Court will look into the entire matter again and decide the matter afresh. 3. The learned District Judge has allowed the application under Order 41 Rule 27 CPC. The learned counsel for the appellants has stated at the bar 3 that he has no objection if the documents sought to be placed on record by way of application under Order 41 Rule 27 CPC are read in evidence. He has also stated that these documents have already been taken on record. The confusion was whether these are to be exhibited as plaintiffs documents or defendants documents, but even this has been cleared by the trial Court. The suit has not been decided on preliminary point nor any additional issue was framed by the learned District Judge. The learned District Judge has not recorded a finding that decision of trial Court on all issues afresh is necessary. In Latest Himachal Law Judgment 2007(HP)192 and Latest HLJ 2005(HP)679, open remand of the case has not been approved. In the facts and circumstances of the case, the impugned Judgment is not sustainable, appeal is allowed. The impugned Judgment is set aside with a direction to learned District Judge to read the documents mentioned in additional evidence application in evidence and decide the appeal in accordance with law. The parties through their counsel are directed to appear before the learned District Judge on 06.04.2009. The Registry is directed to send the record to learned District Judge immediately so as to reach before the date fixed. (Kuldip Singh) Judge March 12, 2009. (BRB)