1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL MISC. APPEAL NO.690/1997. Murti Mandir Shri Gopalji & Another. VERSUS Satya Narain (Since Deceased) through Lrs. 26.03.2009. HON'BLE MR.JUSTICE DALIP SINGH Mr.A.K.Bhandari, Senior Counsel assisted by Mr.Anant Bhandari, for the appellant. Ms.Daya Sharma on behalf of Mr.M.M.Ranjan, for the respondents. ***** Heard learned counsel for the parties. This misc. appeal has been preferred by the plaintiff against the order of remand passed by the learned appellate court vide judgment dated 02.05.1997. The operative portion of the judgment based upon the decision in para No.14 and 15, reads as follows:- “16. अपीलाथȸगण की उक् त अपील उक् त िबन् दओं पर आंिशक ु रूप से ः वीकार की जाती है और िवƮान अधीनः थ न् यायालय के िनणर्य व िडबी िदनांक 8.11.85 को अपाः त करते हऐ य ह ु ूकरण िवƮान अधीनः थ न् यायालय को पुन: ूितूेिषत करके आदेश है िक वाद मूल् यांकन, न् यायशुल् क एवं ्षेऽािधकािरता के िबन् दओं पर अितिरक् त साआ य लेकर इन िबन् दओं को ु ु िविनिशिचत करें और तदोपरांत पेश की गई अितिरक् त साआ य को ध् यान में रखते हऐ इस मामले में नये िसरे से अपना ु िनणर्य देवें/जो अितिरक् त साआ य इस न् यायालय में पेश की गई है वह भी िवƮान अ धीनः थ न् यायालय को ूेिषत की जावे । यह भी आदेिशत िकया जाता है िक चूंिक ूकरण वषर् 1976 का है इसिलऐ इस ूकरण में िदनांक 31.7.97 तक अपना िनणर्य आवँ यक रूप से दें । उभय प्षकारɉ से यह अपे्षा की जाती है िक वे अनावँ य क ः थगन न लेकर उक् त िनयत अविध में ूकरण के िनः तारण को अधीनः थ न् यायालय िसिवल न् यायाधीश क.ख.,झुन् झुनु में उपǔः थत होवेंण । ् अिभलेख अिवलंब िवƮान अिधनः थ न् यायालय को िनणर्य की 2 ूितके साथ िभजवाया जावें । तदनसार िडबी पचार् बनाया ु जावें ।" The submission of the learned counsel for the plaintiff-appellant is that in view of the provisions contained under Order 41 Rule 25 C.P.C. there was no necessity for the learned appellate court to have set aside the judgment dated 08.11.1985 passed by the learned trial court. It was submitted that in case the necessity was felt by the learned appellate court of framing the issue and for calling for the findings after allowing the evidence to be recorded thereon with regard to the question of valuation, court fee and consequent jurisdiction of the court then even without setting aside the judgment passed by the learned trial court, the matter could have been remanded for the limited extent as was done in the present case by remanding the matter to the learned trial court for affording an opportunity to the parties to lead evidence on the question of valuation of suit and determining the same as also the question of court fee to be paid in pursuance of the aforesaid finding on the valuation and consequent jurisdiction of the court, if at all the necessity arises, based upon the above findings. Learned counsel appearing on behalf of the defendant-respondent supported the judgment but however so far as the limited prayer made by the learned counsel for the appellant is concerned, there was no serious challenge to the same in view of the provisions contained in Order 41 Rule 25 C.P.C. In the facts and circumstances, therefore, the 3 judgment passed by the learned lower appellate court dated 02.05.1997 is modified only to the limited extent that the order of remand as directed would stand and the case stands remanded to the learned trial court, as directed by the learned appellate court though the judgment and decree passed by the learned trial court dated 08.11.1985 shall not be deemed to have been set aside. Once the findings are received from the learned trial court, the learned appellate court shall hear and decide the appeal on merits in accordance with law. The parties are directed to appear before the learned trial court on 11.05.2009 along with the certified copy of this order. The learned trial court would, in view of the fact that the suit was filed in the year 1976 try the case and complete the proceedings as per the order of remand passed by the learned lower appellate court dated 02.05.1997 within a period of four months thereafter and remit the findings to the learned lower appellate court for decision of the appeal in accordance with law. The Registry is directed to remit the record to the learned trial court immediately so as to reach the said court by 11th May, 2009. Consequently, this appeal stands allowed to the extent indicated above. There shall be no order as to costs. (DALIP SINGH),J. Solanki DS, Jr.P.A.