HONOURABLE SRI JUSTICE C.V.RAMULU Civil Miscellaneous Appeal No.750 of 2005 JUDGMENT: This Civil Miscellaneous appeal under Order XLIII Rule 1 CPC is directed against a judgment and decree in A.S.No.79 of 2002 dated 28/12/2004 on the file of the Court of III Additional District Judge (Fast Track Court), Anantapur, whereunder the judgment and decree passed by the Court of Principal Junior Civil Judge, Anantapur, in O.S.No.569 of 1994 dated 06/03/2000 decreeing the suit as prayed for was set aside and the matter was remanded for fresh consideration of the suit. The appellant is defendant No.1. Respondent No.1 is the plaintiff. Respondent No.2 is defendant No.2 in the suit. The suit was laid seeking permanent injunction restraining the defendants therein from interfering with the suit schedule property. The suit was decreed since the defendant remained ex parte. The suit itself was dismissed as under by one line order: “Defendants called absent and set ex parte. Suit is decreed as prayed for with costs.” Aggrieved thereby, the appellant herein carried the matter in appeal in A.S.No.79 of 2002 on the file of the learned III Additional District Judge (Fast Track Court), Anantapur. The appellate Court, after hearing both the parties, came to the conclusion that the judgment and decree passed by the trial Court required to be set aside since no reasons were furnished and no evidence was discussed. The judgment of the lower appellate Court reads as under: “Heard both sides. Perused the entire records. As seen from the docket dated 6-3-00 since the defendants were called absent when the case was called, they were set ex parte. The suit was decreed. Further, as observed from the docket sheet of the lower Court, it is mentioned that from 3-2-000 to 29-2-00, the advocate abstained from attending the courts and the case was adjourned from 8-2-00 to 29-2-00. Further, it is clear from the cross- examination of P.W.1 that since the witness answered every question deposing that certain things have to be asked to her husband, the lower Court observed that it is an arrogant answer and hence, her evidence is eschewed. Basing on the above observation, the counsel for the appellant argued that there are merits in the case of the appellant and prayed to dismiss the suit by allowing this appeal. On my considered view, the decree and judgment of the lower Court are not on proper lines. Hence, I set aside the decree and judgment of the lower Court and this appeal is allowed by remanding the suit to the lower Court to give reasonable opportunity to both sides to adduce oral and documentary evidence in support of their case and after hearing arguments on both sides, the lower court has to dispose of the suit. In the result, the appeal is allowed and the decree and judgment passed by the lower Court in O.S.No.569 of 1994 are set aside and the suit is remanded to the lower Court for fresh disposal after giving opportunity to both sides to adduce both oral and documentary evidence on their side as early as possible, as the suit is very old. The costs of this appeal shall abide the result of the suit.” Aggrieved thereby, the present appeal is filed by the first defendant/appellant. It is the case of the appellant herein that the evidence of P.W.1 was eschewed, therefore, the question of again remanding the matter for reconsideration giving opportunity to both the parties does not arise. The lower appellate Court itself could have taken up the matter and decide on the evidence available on record. Instead of doing that, the lower appellate Court has remanded the matter for re-consideration as noticed above, which is arbitrary and illegal. This is nothing but amounts to giving opportunity to the plaintiff to fill the lacunas, if any, in his evidence, particularly, when the evidence of P.W.1 was eschewed. I am afraid, I may not be able to agree with the submissions made by the learned counsel for the appellant. As noticed above, the judgment and decree passed by the lower appellate Court is well considered and reasoned and does not call for interference of this Court. When one line order was passed by the trial Court saying defendants absent, set ex parte, suit is decreed as prayed for, it cannot be said that the appellate Court was not right in remanding the matter for fresh consideration after giving opportunity to both the parties. Hence, the appeal is devoid of merits and is liable to be dismissed. Accordingly, Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. __________________ JUSTICE C.V. RAMULU 30th July, 2010 SKM