IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No.468 of 2007. Date of Decision: 20.6.2008. ________________________________________________________________ Sh.Vijay Kumar … Appellant Versus Sh.Sat Pal … Respondent ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? No For the Petitioner (s) : Mr.Sanjeev Kuthiala, Advocate For the Respondent : Mr. N.K. Thakur, Advocate ________________________________________________________________ Deepak Gupta, J. (Oral ). This Appeal is directed against the judgment dated 14th August, 2007 passed by the learned District Judge, Una whereby he has set-aside the judgment and decree passed by the learned Civil Judge (Junior division), court No.1, Amb dated 31.8.2005 and remanded the entire case for decision afresh. Brief facts necessary for decision of this appeal are that the plaintiff filed a suit, initially praying that the defendant be permanently injuncted from interfering in any manner over the suit land which is abadi land. During the pendency of the suit the plaintiff amended the plaint and prayed for possession of the suit land by demolition of the super- 2 structure alleged to have been constructed by the defendant on the suit land during the pendency of the suit. The suit was decreed by the learned trial Court in the following terms: “20.Suit of the plaintiff is decreed as follows:- 1.Decree for permanent injunction is granted in favour of plaintiff restraining the defendant from causing any interference in the suit land. 2.the plaintiff is entitled for vacant possession of portion of suit land denoted by khasra No.2844/1 measuring 0-00-04 Hects by demolition of structure existing thereupon as is shown in tatima Ex.P-5 which shall form of decree.” The learned trial court while deciding the suit placed heavy reliance on the report of the Local Commissioner copy of which is Ext.P-4. The learned lower Appellate Court came to the conclusion that from the report of the Local Commissioner Ext.P-4 it cannot be ascertained that while carrying out the demarcation he had fixed three pucca points. According to the learned District Judge, the Local Commissioners’ reports also did not indicate that the instructions issued by the Financial Commissioner (Revenue) which have been incorporated in the High Court Rules and Orders have been complied with or not. He therefore declined to place any reliance on the reports of the Local Commissioner and, set-aside the judgment and decree of the learned trial Court as a whole and remanded the case 3 for decision afresh. The directions of the learned lower Appellate Court are as follows: “The impugned judgment and decree are set aside and the case is ordered to be remanded to the Ld. Trial court with a direction that it shall appoint some revenue expert a fresh local commissioner to demarcate the suit land in accordance with the aforementioned instructions of the Financial Commissioner (Rev.) H.P, and then adjudicate upon the controversy involved in the case in accordance with law. In view of the facts and circumstances of the case the parties are left to bear their own costs.” The lower Appellate Court, in my view, rightly rejected the report of the Local Commissioner. The question that arises is what course it should have followed next. The Apex court as well as this Court have time and again deprecated the practice followed by some appellate Courts indulging in wholesale remand of the case. Under the provisions of Order 41 Rule 23, an Appellate Court can remand a case if the suit was decided by the trial court on a preliminary point. Even while so remanding the case the Appellate Court can issue directions directing the trial court to decide a particular issue(s) in the case so remanded. In other cases where the case is not decided on a preliminary issue, the wholesale remand can only be ordered where re- trial is considered necessary by the appellate Court. No such finding has been given in this case. Under Rule 24 of 4 Order 41 if the evidence on record is sufficient then the Appellate Court even after re-settlement of issues should not remand the case but should decide the same itself. Rule 25 of Order 41 provides that in case the Appellate Court frames new issues or re-settle some issues it may either direct the trial Court to record evidence and give its findings on these issues or the Appellate Court may itself record the evidence and decide the issues and the case. In the present case, once the Appellate court came to the conclusion that the report of the Local Commissioners had wrongly been accepted the proper course would have been to set-aside the reports of the Local Commissioner, and direct the learned trial Court to appoint a fresh local commissioner and call for the findings of the trial Court in respect of the report of the Local Commissioner only. No retrial of the case should be ordered in such a case because the parties had spent a lot of time, money and energy in leading their entire evidence. The other option available for the lower Appellate Court was to have itself appointed a new local commissioner, call for the report of the local commissioner, invite objections, if any, from the parties and decide whether to rely upon the report or not. These were the only two options available to the lower Appellate Court. 5 He could not have indulged in wholesale remand of the case. In view of the above discussion, the order of the learned lower Appellate Court cannot withstand legal scrutiny and the same is set-aside. The Appeal is allowed and the case is remanded to the learned lower Appellate Court who is directed to re-register the case on its original. The suit in the present case was filed in the year 1999. it was decided in the year 2005 and now we are in the year 2008. Therefore, I am of the opinion that keeping in view the fact that the case is pending for almost 9 years, the lower Appellate Court should itself appoint a Local Commissioner and call for the report of the Local Commissioner. He shall then give an opportunity to the parties to file objections, if any, to the report of the Local Commissioner and decide the main appeal on the basis of the material led before it. Parties through their learned counsel are directed to appear before the learned lower Appellate court on 6th August, 2008. the learned lower Appellate Court shall make an endeavour to dispose of the appeal latest by 31st March, 2009. June 20, 2008. ( Deepak Gupta ),J. PV