1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL SECOND APPEAL No. 213 of 2005 MEENA DEVI & ANR V/S BALURAM Mr. MC BHOOT, for the appellant / petitioner Mr. ASHOK PATEL, for the respondent Date of Order : 14.11.2006 HON'BLE SHRI N P GUPTA,J. ORDER ----- Heard learned counsel for the parties. Arguments concluded. The main stress of the learned counsel for the appellant was that the learned lower Appellate Court has not at all looked into any evidence available on record much less has discussed it, and appreciated it as the final court of fact even though as appears from page-3 of the impugned judgment that entire evidence was read before the learned lower Appellate Court, and it was submitted that the witnesses are giving false evidence at every stage. Notwithstanding this none of the evidence has been discussed by the learned lower Appellate Court. In my view, in view of the above, the present appeal involves the following substantial question of law:- 2 “Whether the judgment and decree of the learned lower Appellate Court is not according to law as he has not referred to the statement of any of the witnesses inspite of the fact that the entire evidence was read over before the learned lower Appellate Court?” At this stage with the consent of the learned counsel for the parties, on the above substantial questions, the impugned judgment of the learned lower Appellate Court is set aside, and the matter is remanded back to the learned lower Appellate Court for deciding the matter afresh in accordance with law by re-appreciating entire evidence on record, and decide the appeal keeping in view the provisions of O. 41 Rule 31 C.P.C. It is also made clear that in so deciding the appeal afresh, learned lower Appellate Court will not be obsessed by any of the findings already given by it in the impugned judgment. The parties are directed to appear before the learned lower Appellate court on 1.12.2006. The learned lower Appellate Court is further directed to decide the appeal within a period of two months thereafter positively. The appeal is thus allowed as above. ( N P GUPTA ),J. /Sushil/