JUDGMENT
R.L. Anand, J.
1. This is Second Appeal against the Order and has been directed against the judgment dated 28.11.1997, passed by the Additional District Judge, Chandigarh, who set aside the judgment and decree dated 7.1.1997, passed by the Court of Sub Judge 1st Class, Chandigarh and remanded the case to him with the directions to give fresh notice to the parties and then to decide the case, according to law.
2. Some facts can be noticed in the following manner. Shri Shashi Kumar Sharma filed a suit for declaration to the effect that orders dated 16.11.1993 and 8.11.1993 issued by defendant No.1, vide which the representations of the plaintiff dated 26.3.1993 and 21.10.1993 were rejected, are illegal, arbitrary and against the rights of the plaintiff and for permanent injunction restraining the defendants from giving effect on the seniority list dated 29.9.1993, as detailed in the Head Note of the plaint.
3. The suit was resisted. Issues were framed and vide judgment and decree dated 7.2.1997, the learned Sub Judge, 1st Class, Chandigarh, dismissed the suit of the plaintiff.
4. Aggrieved by the judgment and decree of the trial Court, Shri Shashi Kumar Sharma filed the first appeal before the Court of Additional District Judge, Chandigarh along with the appeal, the plaintiff also filed an application under Order 6 Rule 17 C.P.C. which was allowed. As a consequence of that, the Additional District Judge, Chandigarh held in his order dated 28.11.1997, that on the amendment in the plaint, which contains improvements in the pleadings, he considers it necessary and essential to remand the case to the trial Court which will give fresh notice to the defendants of the suit and then will decide the case, according to law. Consequently, the learned Additional District Judge, Chandigarh set aside the judgment and decree of the trial Court and remanded the case.
5. This time the defendants were aggrieved by the judgment of the first appellate court and they have come in the present appeal.
6. I have heard Shri S.P. Sharma, Advocate, on behalf of the respondents. Nobody has turned up on behalf of the appellant.
7. In the view of this Court, the impugned order dated 28.11.1997 is liable to be modified. If the first appellate court had allowed the plaintiff to amend the plaint, the proper course was to call upon the defendants to file the written statement to the amended plaint and thereafter to call for the report of the trial Court after giving directions to it to record the additional evidence which may be led by the parties on the proposed amendment and its rebuttal. After consideration of the said report the first appellate Court ought to have decided the appeal on merits. The Additional District Judge, Chandigarh committed an illegality when he set aside the judgment and decree of the trial Court.
8. In this view of the matter, the appeal is allowed; the impugned order dated 28.11.1997, passed by the first Appellate Court, is hereby modified and directions are given to the Additional District Judge, Chandigarh to call for the report of the Trial Court on issue No. 1 and on receipt of the report to decide the appeal on merits. The Additional District Judge, Chandigarh is hereby directed to re-admit the appeal to its original number and to act as per the directions which have been given above. Parties through their counsel are directed to appear before the first Court on 27.10.1999.