GYANENDRA PRATAP SINGH Vs. YOGENDRA PRATAP SINGH

JUDGEMENT

(1.) HEARD counsel for the parties. This Second Appeal is directed against judgment and order dated 30.7.2011 passed by the Additiional District & Sessions Judge in Civil Appeal No. 46 of 2010 whereby the judgment and order of the court of first instance dismissing the plaintiff-appellant's suit for permanent injunction has been set aside and the matter has been remanded. The submission of learned counsel for the plaintiff-appellant is that he was denied opportunity to cross-examine the witnesses of the defendants-respondents and it is for this reason the matter was remanded but even then provision for cross-examining the witnesses has not been made while remanding.

(2.) SRI Suresh Singh, learned counsel for the defendant-respondent No.1 submits that? the plaintiff-appellant was given full opportunity and he had cross-examined the witnesses also therefore, the remand is not justified. I have considered the impugned judgment and order and the submissions advanced by the parties. A plain reading of the impugned judgment and order reveals that the plaintiff-appellant had cross-examined the witnesses on 3.2.2010 and 5.2.2010 but probably on the next date fixed i.e. 8.2.2010 for completion of cross-examination, he failed to complete the same. The court closed the evidence and fixed date for arguments. Thereafter proceeded? to decide the suit. The appellate court below remanded the matter as the record failed to reflect that the plaintiff-appellant was heard, before pronouncing the judgment. The appellate court below has not commented or recorded any finding with regard to denial of opportunity to the plaintiff-appellant to cross-examine the witnesses.