IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER S.B. CIVIL MISC. APPEAL NO.1252/2008 Budhmal Vs. Shri Rani Sati Mandir & Ors. 15.4.2008. HON'BLE MR. JUSTICE DALIP SINGH Shri Ajeet Bhandari,for the appellant. Heard learned counsel for the appellant. This appeal has been preferred against the judgment dated 25.1.2008 by which the learned lower court has accepted the appeal and has set aside the judgment and decree dated 21.9.2002 passed by the learned trial court and has remanded the case to the learned trial court on payment of cost of Rs.1500/- directing the learned trial court to grant an opportunity to both the parties to lead evidence and after affording them an opportunity of being heard to decide the suit and the counter claim in accordance with law. Learned trial court had dismissed the suit as well as the counter claim since none of the parties lead evidence before it. Plaintiff failed to lead the evidence as a result of which the learned trial court closed the rights of the plaintiff to lead evidence vide order dated 21.9.2002. The learned lower appellate court after hearing the learned counsel for the parties in appeal came to the conclusion that the parties must be afforded an opportunity to lead evidence and the case ought to be decided on merits after going through the evidence lead by the parties. It was also the a case of the plaintiff before the learned lower appellate court that despite the fact that the witnesses were present all through out the counsel allegedly in collusion with the defendant failed to get the evidence recorded by producing the witnesses in court. The lower court therefore came to the conclusion that on account of any collusion or fault on the part of the counsel for the parties should not be permitted to suffer. In the facts and circumstances which have come on record as mentioned in the judgment of the learned lower court, I am not inclined to interfere with the direction given by the learned lower court and that the suit should be decided on merits after recording the evidence of the parties and the plaintiff should not be allowed to suffer for any alleged conduct of the counsel. Learned counsel for the appellant has also submitted that the appeal filed before the learned trial court was incompetent and also preferred an application before the lower appellate court raising the aforesaid objection. It is submitted that only appellant No.4 Trust was the original plaintiff and the other trustees and office bearers namely Gopal and Satyanarain were not impleaded as party though it has been submitted that Satya Narain had died and as such his name is ordered to be deleted. It has also been submitted that that an application under order 22 rule 9 had been filed that the defendant Prahlad Ram had died during pendency of the the suit itself and the same abated as the LRs had not been substituted. So far as the above contention is concerned suffice it to say that the appellant defendant has moved an application before the learned trial court in this half after the remand order which is pending for consideration and is to be heard on 25.4.2008 by the trial court. In that view of the matter since the objections have already been raised before the learned trial court this court would refrain from giving any finding on the same. This appeal is accordingly dismissed summarily. The stay application is also dismissed. (DALIP SINGH),J. Ramchandrkhatri,PS