SHIVALINGAIAH Vs. RESHMA

JUDGEMENT

(1.) Heard the appellant's counsel and also the counsel appearing for the respondent.

(2.) This appeal is filed challenging the order passed by the first appellate court in RA No.2/2020 and the appellate Court while passing an order of setting aside the judgment and decree of the trial Court remanded the matter to the trial Court under Order 41 Rule 23A of CPC for re-trial and disposal afresh in accordance with law by re-admitting the suit under its original number in the register of civil suits and by taking into consideration the observation made in the order. Further, the trial Court was directed to give an opportunity to both the parties to lead additional evidence if any, with respect to the aspects discussed in the judgment including an opportunity to the parties to apply for local inspection by invoking Order 26 of CPC and the parties shall appear on 5/9/2022 for the purpose of receiving the directions of the trial Court as to further proceedings in the suit.

(3.) The counsel appearing for the appellant would vehemently contend that there was no need to remand the matter and suit is filed for the relief of only declaration and injunction and no dispute with regard to the boundaries between the parties and the respondent/plaintiff has to prove his case on his own with regard to his title and also weakness of the defendants cannot be relied upon and the same is not a basis for considering the suit of the plaintiff and first appellate Court committed an error in remanding the matter.