MAKKHAN Vs. ADDL JUDGE SMALL CAUSES COURT ALIGARH

JUDGEMENT

(1.) O. P. Garg, J. Heard SriDivakar Rai Sharma,learned Counsel for the petitioner as well as learned Standing Counsel.

(2.) THE petitioner instituted Suit No. 365 of 1985. THE said suit was dismissed on 23-2-1991. THE petitioner has preferred civil appeal No. 11 of 1991. During the pendency of the appeal the petitioner as serted that he had been dispossessed in an unlawful manner by the contesting respondents- defendants from the dis puted property on 30th June, 1982. An application for amendment was moved for incorporating the above plea as well as relief of possession. This amendment ap plication was allowed and an issue on the point has been framed. THE petitioner moved an application under Order XLI, Rule 25 of the C. P. C. with the prayer that this issue be remitted to the trial Court for recording a finding thereon, after evidence of the parties. This application has been rejected by the Appellate Court by the impugned order dated 4-8- 2000, a copy of which is Annexure-3 to the writ petition, by observing that since the evidence of the parties with regard to the possession is already on record the issue is not required to be remitted for further evidence.

(3.) SRI Rai placed reliance on the decision of this Court reported in 1998 (1) ARC 159, Bhonu alias Nizamuddin v. Nankulli and others, in which expression 'may' occurring in Order XLI, Rule 25 has been interpreted as 'shall'. Various obser vations made in the aforesaid decision squarely apply to the facts of the present case.