KANHAIYA LAL ARYA Vs. BALDEO TEWARI

JUDGEMENT

(1.) THIS is an appeal against the order of the Fourth Temporary Civil and Sessions Judge, Gorakhpur, allowing the appeal filed by the Appellants and remanding the suit for a fresh trial to the Munsif's Court. The Respondents had filed a suit for the demolition of certain constructions said to have been unauthorisedly made on a public lane. It is not necessary to set out the contentions of the parties in detail. As many as 11 issues were framed by the Munsif. After taking the evidence of the parties and hearing them, the Munsif decreed the suit on April 28, 1972. Against the decree of the Munsif, the Appellants preferred an appeal. The appellate court was of opinion that since the Plaintiffs had sued as members of the public whose right of passage had been interfered with by the Defendants by their constructions, the Plaintiffs should have alleged and proved special damages suffered by them. Since there was no such issue and no finding on the point, the lower appellate court remanded the suit to the Munsif after setting aside the decree. The Defendants have come up in appeal.

(2.) THE main contention of the learned Counsel for the Appellants is that if there was any defect in the pleadings of the Plaintiff, the appeal should have been allowed and the suit should have been dismissed and that it was not proper for the lower appellate court to remand the suit for removing the defect.

(3.) THE appeal is accordingly dismissed. There will be no order at to costs. The stay order is vacated.