1 S.B. Civil Misc. Appeal No.866/2005 (Anil Kumar vs. Akbar Ali & Ors.) S.B. Civil Misc. Appeal No.867/2005 (Anil Kumar vs. Abbas Ali & Ors.) 1. S.B. Civil Misc. Appeal No.866/2005 (Anil Kumar vs. Akbar Ali & Ors.) 2. S.B. Civil Misc. Appeal No.867/2005 (Anil Kumar vs. Abbas Ali & Ors.) Date : 11.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.S Shrimali, for the appellant. Mr.Manish Shishodia, for the respondents. - - - - - Though these two appeals have been listed for orders on stay applications, but at the request of learned counsel for the parties, these two appeals itself are being heard and decided finally by this common judgment as both the appeals involve same question of law. The appellant/plaintiff has challenged the order of Additional District Judge, Nimbaheda dated 23.4.2005 by which the first appellate court set aside the judgment and decree dated 22.9.2000 which was passed in 2 S.B. Civil Misc. Appeal No.866/2005 (Anil Kumar vs. Akbar Ali & Ors.) S.B. Civil Misc. Appeal No.867/2005 (Anil Kumar vs. Abbas Ali & Ors.) two suits after consolidating two civil originals suits no.606/1993 and 607/1993. As per the facts of the case, the plaintiff filed two separate suits for pre-emption wherein the defendants submitted application to consolidate the two suits. The two suits were consolidated. Evidence was recorded by the trial court. The trial court dismissed both the suits by common judgment and decree dated 22.9.2000. The plaintiff, therefore, preferred two separate appeals which are Civil Appeal Decree No.17/2000 and 3/2001. The first appellate court was of the view that the trial court should have decided the two suits separately and the trial court should have decided the question about the premises being residential or commercial on the basis of evidence already available on record. The first appellate court merely on these grounds set aside the judgment and decree passed by the trial court and pertinent fact is that without setting aside the findings of the trial court on relevant issues. Learned counsel for the appellant submitted that the first appellate court committed serious error of law by remanding the two suits for deciding by the 3 S.B. Civil Misc. Appeal No.866/2005 (Anil Kumar vs. Akbar Ali & Ors.) S.B. Civil Misc. Appeal No.867/2005 (Anil Kumar vs. Abbas Ali & Ors.) trial court by separate judgments. Firstly that could have been done by the first appellate court itself ; secondly, when the evidence is available on the record, it is the normal practice that the first appellate court should not have remanded the matter for deciding the suit afresh and thirdly the appellate court could not remand the matter without setting aside the findings of the trial court. It is also submitted that the issues which have not been decided by the trial court and which ought to have been framed and decided by the trial court, then also if the evidence is sufficiently available on the record, the first appellate court should have decided the appeals and the issues which have not been decided by the trial court. Learned counsel for the appellant also submitted that even if one of the suit could not have been maintainable because of the objection of pecuniary jurisdiction, then the other suit could not have been returned or rejected by the Court. Learned counsel for the respondents submitted that because of consolidation of the suits, two separate causes of action have been clubbed together and, therefore, it has resulted into prejudice. 4 S.B. Civil Misc. Appeal No.866/2005 (Anil Kumar vs. Akbar Ali & Ors.) S.B. Civil Misc. Appeal No.867/2005 (Anil Kumar vs. Abbas Ali & Ors.) I considered the submissions of learned counsel for the parties and perused the reasons given in the judgments passed by the first appellate court as well as the trial court and the record. The facts which have been referred above are not disputed that the plaintiff – one person filed two suits for pre-emption and the two suits were consolidated and evidence was recorded in the suits and the suits were decided on merits by the trial court by the common judgment. The first appellate court committed serious error of law by setting aside the judgment and decree without considering the merit and claim and the cases of the parties in relation to the issues raised in the suit and framed by the trial court. The findings which have been recorded by the trial court and which were just and legal could not have been set aside merely on the ground that the trial court decided the two suits by one common judgment. Even in a common judgment, there can be separate decision on issues with respect to the claims of different parties. The appellate court itself could have passed separate judgments in the same judgment by mentioning the facts of one case and the reason for one 5 S.B. Civil Misc. Appeal No.866/2005 (Anil Kumar vs. Akbar Ali & Ors.) S.B. Civil Misc. Appeal No.867/2005 (Anil Kumar vs. Abbas Ali & Ors.) case at first part of the judgment and then could have mentioned the facts of the second case and the reasons for deciding the second case. That would not have been any illegality but that would have served the cause of justice. It would be worthwhile to mention here that the first appellate court has not framed any additional issue so as to necessitate re-trial of the entire suit. Not only this, the appellate court on the question of property being residential or commercial, only said that the trial court should decide the said issue on the basis of evidence available on the record. Therefore, in the present matter, neither the parties were to lead any evidence nor retrial was necessary, therefore, there was no occasion for the first appellate court to remand the matter while deciding two separate suits instead of deciding two cases by one judgment in a consolidated suit. In view of the above reasons, these appeals are allowed, the orders dated 23.4.2005 passed by the first appellate court are set aside and the first appellate court is directed to decide the appeals as well as cross objections on the basis of evidence available on 6 S.B. Civil Misc. Appeal No.866/2005 (Anil Kumar vs. Akbar Ali & Ors.) S.B. Civil Misc. Appeal No.867/2005 (Anil Kumar vs. Abbas Ali & Ors.) record in accordance of law. Consequently, the stay petitions have become infructuous and they are dismissed. (PRAKASH TATIA), J. S.Phophaliya