IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.584 of 2008 JAUWAD HUSSAIN @ JAWED HUSSAIN, SON OF LATE ADALAT HUSSAIN, RESIDENT OF VILLAGE PAKHOPALI , P.O. THAWE, P.S. UCHKAGAON, DISTRICT-GOPALGANJ. …….DEFENDANT NO.1…...RESPONDENT NO.1…………...APPELLANT. Versus 1. KUMAR CHOUDHARY, SON OF LATE CHUNNU CHOUDHARY, RESIDENT OF VILLAGE PAKHOPALI, P.O. THAWE, P.S. UCHKAGAON, DISTRICT-GOPALGANJ. ………PLAINTIFF….APPELLANT…….RESPONDENT 1ST PARTY. 2. ABDUL RAHMAN. 3. MD. SHAMIM. 4. MD. AMIN. 5. MD. BASHIR, ALL SONS OF LATE MOHAMMADDIN MIAN. 6. SULEMAN MIYAN, SON OF BANGALI MIYAN. ALL RESIDENTS OF VILLAGE INDARWA ABADULLAH, P.O. SUKULAWA, P.S. GOPALGANJ, DISTRICT-GOPALGANJ. …..DEFENDANTS 1ST SET…RESPONDENTS 1ST SET…RESPONDENT 2ND PARTY. 7. CHANDRADEO KUWAR, SON OF SURUJ KUWAR. 8. BIKARAMA SINGH. 9. UPENDRA SINGH, BOTH SONS OF LATE BACHAN KUWAR. 10. MOST. MUNNI KUER, WIFE OF LATE BACHAN KUWAR. 11. ANARKALI. 12. UMARAWATI, BOTH DAUGHTERS OF LATE BACHAN KUWAR, ALL RESIDENTS OF VILLAGE PAKHOPALI, P.O. THAWE, P.S. UCHKAGAON, DISTRICT-GOPALGANJ. …DEFENDANTS 2ND SET …. RESPONDENTS 2ND SET...RESPONDENTS 3RD PARTY. ----------- For the Appellant : Mr. Umesh Kumar Mishra, Advocate. For the Plaintiff-Respondent 1st set : Jitendra Kumar Srivastava, Advocate. ----------- 2. 31.3.2009. Heard the learned counsel for the appellant and the learned counsel for the plaintiff-respondent 1st set. The appellant, who happens to be the Defendant No.1 in Title Suit No.142 of 2001/224 of 2002, through this memorandum of appeal under Order 43 Rule 1 (u), has prayed for setting aside of the judgment and decree dated 8.9.2005 passed by Sri Choudhary Brijendra Kumar Rai, the learned Presiding - 2 - Judge, Fast Track Court No.III, Gopalganj, in Title Appeal No.91 of 2005/79 of 2007, whereby the order dated 8.9.2005 passed in the suit has been set aside and the case has been remitted back to the court below with a direction to hear the parties afresh after framing issues in the light of the observations made in he judgment of the appellate court and to proceed in accordance with law. The grievance of the appellant is based on the fact that the remittance of the case to the court below is in violation of the principles of natural justice and would cause unusual hardship to his client. It was also sought to be submitted that the appellate court itself was competent to dispose of these matters by itself without remitting the case back to the court below. As would appear from the judgment of the appellate court, although no relief regarding the declaration of right, title and interest were sought for by the plaintiff, the learned lower court has given its finding on the question of right, title and interest. It further appears that although a reference has been made to Ext.A/3 and has been discussed by the trial court, but in fact, the said Exhibit was not available on record and it was felt that the court below could not give its finding since it was a finding based on a non existent document. The lower appellate court was also of the view that the pleading of the defendants regarding the suit being bad for non joinder of necessary parties was neither framed as an issue in the suit nor any finding was given in that regard. Finding all these short comings, the lower appellate court while setting aside the order of the lower court, remitted the case back to it. I find no apparent illegality and impropriety so as to interfere with the said judgment allowing the appeal and remitting the case back to the court below for a fresh hearing in the light of the observations made by the lower - 3 - appellate court. Accordingly, this Misc. Appeal is dismissed. P.S. (Abhijit Sinha,J)