KAUSHALYA DEVI Vs. RAMNARESH

JUDGEMENT

(1.) THIS appeal, preferred under Order 43 Rule 1 of Code of Civil Procedure, 1908, is against the judgment and order dated 22.04.2008, passed by District Judge, Haridwar, in Civil Appeal No. 27 of 2004, Ram Naresh Versus Smt. Kaushlya Devi and others, whereby the appeal was allowed and judgment and decree dated 23.09.2004, passed by Civil Judge (Sr. Division), Haridwar, in Original Suit No. 126 of 1997, Smt. Kaushlya Devi Versus Malkhan and others, has been set aside and suit has been remanded for disposal before trial court.

(2.) BRIEF facts giving rise to the appeal are that a suit for specific performance of contract was filed in the year 1997, registered as suit No. 126 of 1997, before Civil Judge (Senior Division), Haridwar, against the respondents. The aforesaid suit was decreed ex-parte by the trial court in favour of appellant/plaintiff vide order dated 19.08.2000 (Annexure no. 3 to the appeal). Feeling aggrieved by said order dated 19.08.2000, the defendant-Malkhan Singh, preferred a civil appeal No. 10 of 2002, Malkhan Singh Versus Smt. Kaushlya Devi, before District and Sessions Judge, Haridwar. Vide order dated 30.07.2002 (annexure no. 4 to the appeal), District & Sessions Judge, Haridwar, allowed the appeal and the matter was remanded back to the trial court and appellant was given an opportunity to adduce evidence. Thereafter, suit was again heard and decided on merit vide order dated 23.09.2004 by Civil Judge (Senior Division), Haridwar. Aggrieved by order dated 23.09.2004, passed by the trial court, civil appeal No. 27 of 2004, was preferred by Ram Naresh (son of original defendant-Malkhan Singh). Learned District Judge after hearing the parties, vide order dated 22.04.2008, again remanded the suit to the trial court on the ground that the issues have not been properly framed. The issue No. 1 framed by Civil Judge (Senior Division), Haridwar is as under:- ...[VERNACULAR TEXT OMMITED]...

(3.) RELIANCE has also been placed on yet another judgment, reported in JT 2002 (5) SC 5, P. Purushottam Reddy and another Vs. Pratap Steels Ltd., wherein in para 10, it has been observed as under:-