D ARULRAJ Vs. D VIJAYALAKSHMI

JUDGEMENT

(1.) This appeal has been filed by the appellant against the order of remand dated 07.07.2006 in A.S. No. 7 of 2005 on the file of the Subordinate Judge, Thiruvarur.

(2.) The learned counsel for the plaintiff.appellant contended that the suit was originally filed by the plaintiff/appellant for the relief of bare injunction and subsequently it was amended into one of declaration and permanent injunction. Both the first defendant and the second defendant have filed their written statement, evidence was let in both sides. At that stage, the first defendant/first respondent herein was set exparte. The trial court, heard the matter at length and passed orders on merits decreeing the suit in favour of the plaintiff/appellant herein. Aggrieved by the same, the first defendant, who was originally set exparte in the suit, preferred A.S. No. 7 of 2005 before the first appellate Court. The first Appellate Court without going into the merits of the case and without giving any finding in so far as the decree passed by the trial court, only based on the submission of the first defendant/first respondent herein that he was set exparte before the court below, set aside the decree and judgment passed by the court below and remanded the matter to the trial court for a de-novo trial which is legally impermissible.

(3.) The learned counsel for the first defendant/first respondent herein contended that the suit was filed for declaration and injunction in which the first defendant, after filing the written statement, was set exparte. Thereafter, the first appellate Court, in order to afford an opportunity to the first defendant, has rightly remanded the matter back to the trial court for fresh consideration and prayed for dismissal of this appeal.