Suit for possession of property

Appellant/defendant contended that suit of the plaintiff was instituted in the year 1997 which was dismissed after recording the evidence and appellate court had wrongly remanded such an old case

Respondent/plaintiff contended that defendant was in illegal possession of the property which was in ownership of the plaintiff and that appellate court had rightly remanded the case to be decided afresh

Record revealed that the parties were litigating since 1997 and Trial Court had decided the case on its merits after recording evidence of the parties

Under O. XX, R. 5, C.P.C. it was necessary for the Trial Court to decide the suit issue-wise and would state the finding or decision, with the reasons upon each separate issue

If from the record it was possible to resolve the controversy, appellate court instead of remanding the case to the lower court, was to decide the appeal on merits

High Court observed that in the present case, the trial court had decided the case on merits though some of the issues had been decided in a telegraphic manner, however, the first appellate court should have decided the controversy on merits, because the evidence of the parties had already been recorded and the record relied upon by the parties was also available to it for drawing its conclusion on merits of the case

Where no additional issue was framed or additional evidence was required, especially where the parties were litigating since long, the remand of the case was not justified

High Court remanded the case to the first appellate court for decision of the case on its merits within a period of 3 months

Appeal was accepted accordingly.