1.0 Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant herein original plaintiff to quash and set aside the impugned judgment and decree passed by the learned trial Courtlearned 4th Additional Senior Civil Judge, Junagadh passed in Regular Civil Suit No. 285 of 2003 as well as impugned judgment and order passed by the learned Principal District Judge, Junagadh passed in Regular Civil Appeal No.1 of 2008, by which, the learned Appellate Court has dismissed the said appeal preferred by the appellant herein confirming the judgment and decree passed by the learned trial Court in partly decreeing the suit only.
2.0 Considering the facts and circumstances of the case, more particularly, considering the additional documents which are produced by the appellant hereinoriginal plaintiff which the appellant has produced before this Court pursuant to the order passed by this Court dated 17.8.2012 passed in Civil Application No. 9253 of 2012 by which the appellant was permitted to produce on record additional evidence, there is broad consensus between the learned advocates for the respective parties that impugned judgment and order/ decree passed by both the Courts below be set aside and the matter be remanded to the learned trial Court to decide and dispose of the said suit in accordance with law and on merits and after permitting the parties to lead evidence / additional evidence. Learned advocates for the respective parties do not invite any reasoned order while remanding the matter to the learned trial Court.
3.0 In view of the above and for the reasons stated above, present Second Appeal succeeds and considering the broad consensus between the learned advocates for the respective parties recorded hereinabove, the impugned judgment and decree dated 3.11.2007 passed by the learned trial Courtlearned 4th Additional Senior Civil Judge, Junagadh passed in Regular Civil Suit No. 285 of 2003 as well as impugned judgment and order dated 15.2.2012 passed by the learned Principal District Judge, Junagadh passed in Regular Civil Appeal No.1 of 2008 are hereby quashed and set aside without further entering into the merits of the case and / or expressing anything on merits in favour of either parties and matter is remanded to the learned trial Court to decide and dispose of the Regular Civil Suit No. 285 of 2003 afresh and in accordance with law and after permitting the parties to lead the evidence/ additional evidence and after giving an opportunity to the concerned parties to convert the same. If the appellant herein proposes to submit the additional evidence, she may produce the same within a period of one month from the date on which the suit is taken up for further hearing on remand and may step into witness box so that she can be cross examined on the additional evidence. Thereafter, the learned trial Court to consider the suit in accordance with law and on merits at the earliest but not later than six months from the date of receipt of the present order. All the contentions/ defences which may be available to the respective parties are kept open for which this Court has not expressed anything on merits. With this, present Second Appeal is allowed to the aforesaid extent. No costs. Registry is directed to sent writ of this order to the learned trial Court immediately.
“kaushik”
sd/ ( M. R. Shah, J. )