NARAYANI Vs. DAMU

JUDGEMENT

(1.) A suit for injunction restraining the defendants from entering into the plaint schedule property was dismissed by the Trial Court, on the finding that the plaintiff is not in possession of the property. An appeal was preferred by the plaintiff. The appellate court also concurred with the Trial Court that the plaintiff has failed to prove possession of the suit property. Yet the appellate court allowed the appeal and set aside the decree and judgment of the Trial Court and remanded the case to the Trial Court "to give an opportunity to the appellant to amend the plaint so as to convert the suit as one for recovery of possession."

(2.) The plaintiff had not chosen to seek for amendment of the plaint when the suit was pending in the Trial Court. However, the plaintiff had not thought it necessary to file any such application even in the appellate court. Even so, the appellate court had shown the indulgence in directing the plaintiff to file an application to amend the plaint so as to convert the suit as one for recovery of possession. Learned Sub Judge who disposed of the appeal evidently forgot that the plaintiff is at liberty to file a fresh suit for recovery of possession on the strength of tide.

(3.) Shri. K. Lakshmy Narayan, learned counsel for the appellant has invited my attention to the decisions reported in Nilamani Dibya v. Biswanath Mohapatra ( AIR 1987 Ori. 227 ) and Pattammal v. Yasotha Ammal ( 1980 (1) MLJ 447 ) in support of his contention that the power of remand should not be exercised unduly and unreasonably in situations like this. In Nilamani Dibya's case, Mohapatra, J. has observed that the order of remand on an issue decided by the Trial Court and confirmed by the appellate court, in the absence of an application for amendment of the plaint or for adducing additional evidence is unjustified. Reference was made to the newly added Rule (Rule 23-A) to Order XLI of the Code of Civil Procedure, and the learned Judge has observed "even if R.23-A has been added by amendment, the principle behind the remand of the appellate court has not undergone any change as the power of remand can be exercised where the appellate court while reversing the decision of the Trial Court considers a retrial necessary. The power is no doubt wide. Yet wider is the power, greater should be the restraint keeping in mind that early finality of a litigation is the public policy."