KAHINATH J PAI Vs. PRADIP BABUSO VAST

JUDGEMENT

(1.) HEARD learned Counsel for both the parties. Perused the report.

(2.) THE present appeal is preferred by the appellants plaintiffs against the Judgment and Order passed by the Ad hoc Additional District Judge, Panaji allowing the appeal of the respondents and setting aside the Judgment and Decree passed by the trial Court with direction that the suit would be remanded to the trial Court for fresh trial according to law and further direction that the trial Court shall consider afresh the suit from the stage of issuing process to the parties under Order 1, Rule 8 of Code of Civil Procedure.

(3.) THE plaintiffs appellants filed suit on various grounds before the trial Court, seeking various reliefs including the relief of perpetual injunction. The learned trial Judge, after hearing both the parties, on the basis of available evidence on record, decreed the suit partly in terms of prayer clause (a), granting perpetual injunction against the respondents defendants. While disposing of the suit, prayer clauses (b), (c) and (d) of the plaint came to be rejected. In other words, the suit was partly decreed granting perpetual injunction and rejecting all other reliefs. The plaintiffs, thereafter, preferred an appeal against the Order rejecting the prayer clauses (b), (c) and (d) in the District Court. However, the learned District Judge, as it appears from the record, came to the conclusion that the Judgment and Decree passed by the lower appellate Court was bad in law for want of proper service on the defendants and the appeal was allowed and the entire Judgment and Decree of the trial Court came to be set aside with direction for remand of the matter. Hence, the present appeal is preferred against the said order with submission that the entire suit could not have been dismissed by the lower appellate Court when neither any appeal nor any cross objections were filed by the respondents before the lower appellate Court, nor the present appellants were put to notice of the intention of the lower appellate Court to dismiss the entire suit for the grounds mentioned and, therefore, the prayer is made to the effect that the matter be remanded to the District Court for considering these aspects.