Abdul Ghani Memorial Trust And Ors. vs Bihar State Sunni Wakf Board And Ors.

2. The High Court exercising its jurisdiction under Section 100 of the CPC has set aside the judgment rendered by the learned Additional Subordinate Judge in a second appeal on the following reasoning :-

We have gone through the judgment under appeal more than once with the learned Counsel and we find that a large number of relevant pieces of evidence have not been considered by the lower appellate court, which renders the findings of fact vulnerable under Section 100 of the CPC. In fact, several of the observations by the appellate court are contradictory to each other. In the circumstances, we are of the view that the matter requires a reconsideration by the lower appellate court and the cases, therefore, should be remitted for that purpose.

In our opinion the findings recorded by the learned Additional Subordinate Judge could not have been set aside and the matter could not have been remanded virtually for writing a fresh judgment without causing prejudice to the party in whose favour the findings were recorded. If the findings are vulnerable, it is open to the High Court in the course of exercise of powers under Section 100 of the CPC to set aside those findings. So also it is always open to the High Court to call for a finding from the lower appellate court whilst retaining the appeal with itself if it is considered necessary to adduce further evidence. If, on the other hand, the additional evidence which the High Court considers it appropriate to receive even at the stage of a second appeal in accordance with law is in the form of a document and does not require any formal proof, the High Court can receive additional evidence itself and proceed to determine the matter in accordance with law. It is open to the High Court to adopt any of these courses if considered necessary. However, it is not open to the High Court to set aside the judgment of the lower appellate court and remit the matter back to the lower appellate court for writing a fresh judgment. We, therefore, allow this appeal, set aside the order passed by the High Court and remit the matter back to the High Court for being disposed of in accordance with law after hearing the parties. We hope that it will be possible for the High Court to dispose of the matter expeditiously.

3. There will be no order as to costs.