SBCMA No.2715/2007 Smt. Kamla & Anr. Vs. Smt. Kalpana 1 SBCMA No.2715/2007 Smt. Kamla & Anr. Vs. Smt. Kalpana DATE OF ORDER : - 18.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.SL Jain, for the appellant. Mr.Vijay Purohit, for the respondents. <><><> Heard learned counsel for the parties. The appellants are aggrieved against the order dated 30th Nov., 2007 passed by the court of District Judge, Dungarpur whereby the appellate court set aside the judgment and decree of the trial court dated 11.10.2004 by which the trial court dismissed the plaintiff's-respondent's suit. The appellate court after setting aside the decree dated 11.10.2004 remanded the matter back to the trial court after framing and re-casting the issues with opportunity to both the parties to produce evidence. According to learned counsel for the appellants the SBCMA No.2715/2007 Smt. Kamla & Anr. Vs. Smt. Kalpana 2 pleadings were completed, the issues were framed by the trial court, there was no objection of any party that the issues were not framed properly, both the parties knowing it well what is the dispute and what are the issues involved, led evidence and, thereafter, the trial court passed the judgment and decree dated 11.10.2004. Before the first appellate court, the pleadings and the evidence were available and on the basis of the pleadings and evidence, the appellate court itself could have decided the appeal, but without any lawful reason, it re-caste and re-framed the issues and remanded the matter and reopened the entire trial. It is submitted that it was not even prayer of the respondent in the memo of appeal before the first appellate court. It is also submitted that it is not the case of the plaintiff-respondent before the first appellate court that because of wrong framing of issues or because of not framing necessary issues any prejudice has been caused to the plaintiff- respondent. Learned counsel for the respondent submitted that the SBCMA No.2715/2007 Smt. Kamla & Anr. Vs. Smt. Kalpana 3 appellate court considered the entire facts of the case in detail and thereafter, reached to the conclusion that the issues were not properly framed by the trial court and, therefore, set aside the judgment and decree, which is clear from the reasons given by the appellate court in the order dated 30th Nov., 2007. I perused the pleadings of the parties and I am of the view that there is no reason for re-trial of the entire suit merely on the ground that trial court has not framed the issues properly. There must be more lawful reason for retrial. If issues were not framed in proper language but parties understood the case and issues involved and led evidence and no prejudice has been caused to parties, the appellate court should not remand the matter to the trial court. In a case issues are not properly framed and it results into prejudice to the party then only there may arise question of re-trial. When sufficient evidence is available on record before the appellate court coming from the trial court and on the basis of evidence, the appeal and the suit itself SBCMA No.2715/2007 Smt. Kamla & Anr. Vs. Smt. Kalpana 4 can be decided, the appellate court if wants to frame the issues afresh for the purpose of deciding the appeal, the appellate court is empowered to do so. In view of the above reasons, the appellate court's order for remand of suit and setting aside of the decree dated 11.10.2004 is set aside. Since the appellate court was of the view that the suit should have been decided by framing the issues as framed by the appellate court therefore, the appellate court itself may decide the suit according to the issues framed by the first appellate court itself as none of the party sought opportunity to produce more evidence and looking to the facts of the case, there is no reason for giving opportunity to the party, who knowingly have produced the evidence with respect to their claim and counter claim. Hence, the appeal of the appellant is partly allowed. The order of the first appellate court setting aside the judgment and decree of the trial court dated 11.10.2004 and the remanding matter to the trial court is set aside. SBCMA No.2715/2007 Smt. Kamla & Anr. Vs. Smt. Kalpana 5 The appellate court may decide the appeal on merits. Both the parties are directed to remain present before the first appellate court on 14.10.2008. (PRAKASH TATIA), J. c.p.goyal/-