SAO No.39 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. SAO No.39 of 2007 Date of Decision: 26.11.2008 Gurdev Singh and others .....Appellants Vs. Shingara Singh and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.G.S. Nagra, Advoate for the appellants. Mr.V.G. Dogra, Advocate for respondent no.1. .... RAJIVE BHALLA, J (Oral) Challenge in this appeal is to an order dated 25.10.2007, passed by the Additional District Judge, Jalandhar, accepting the appeal and setting aside the judgement and decree passed by the Civil Judge (Junior Division), Nakodar, dated 4.5.2005 and remitting the suit to the trial Court for adjudication afresh. Counsel for the appellants submits that instead of setting aside the entire judgement and remanding the suit to the trial Court to decide the suit afresh, the first appellate Court should have called upon the trial Court to decide the issue with respect to admissibility of secondary evidence and submit a report. It is submitted that the course adopted by the first appellate Court would lead to unnecessary delay and a de-novo trial. Counsel for the respondent no.1, however, submits that the SAO No.39 of 2007 2 trial Court has recorded an opinion with respect to the evidence, sought to be led as secondary evidence, without deciding the issue, whether secondary evidence can be led. The first appellate Court, therefore, rightly set aside the entire judgement and decree and remanded the suit to the trial Court to decide it afresh, after deciding the issue with respect to secondary evidence. I have heard learned counsel for the parties and perused the impugned judgement. As noticed in the narrative of facts, the first appellate Court has set aside the judgement and decree passed by the trial Court and remanded the suit to the trial Court to decide the matter afresh after deciding the issue, with respect to secondary evidence. The first appellate Court, should in the facts and circumstances of the present case have invoked its jurisdiction to call upon the trial Court to submit a report with respect to the issue of secondary evidence. The only defect in the judgement impugned before the first appellate Court is the failure of the trial Court to decide the issue with respect to secondary evidence. The first appellate Court, therefore, should have called for a report with respect to this issue, from the trial Court instead of remanding the suit for a fresh adjudication. The power of remand should be used sparingly and in exceptional circumstances more particularly, where calling for a report on a particular issue/point from the trial Court would suffice. As a result, the appeal is allowed and the order dated 25.10.2007, passed by the Additional District Judge, Jalandhar, is modified to the extent that the learned trial Court shall submit a report to the Additional District Judge, Jalandhar, within a period of three months from the date of receipt of a certified copy of this order on the following issue :- SAO No.39 of 2007 3 “1. Whether the applicant is entitled to lead secondary evidence ? OPA” ? As the order dated 25.10.2007, passed by the Additional District Judge,Jalandhar is being set aside, the appeal is restored to his Court. The Additional District Judge, Jalandhar, shall decide the appeal within a period of three months from the date of submission of the report by the trial Court on the aforesaid issue. Parties are directed to appear before the Civil Judge (Junior Division), Nakodar on 22.12.2008. 26.11.2008 (RAJIVE BHALLA) GS JUDGE