RAJENDRASINGH Vs. KALOOSINGH

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 9-9-2011 passed by III ADJ, Mandsaur in Civil Regular Appeal No. 18-A/11 arising out of judgment and decree dated 30-9-2010 passed by I Civil Judge Class II, Mandsaur in Civil Suit No. 61-A/09 whereby the suit filed by the respondent was dismissed, was set aside and the case was remanded, the present appeal has been filed. Short facts of the case are that respondent filed a suit for declaration and possession on 13-5-2009. The suit was contested by the appellant on various grounds including on the ground that suit filed by the respondent is barred under Order II Rule 2, CPC as respondent earlier filed a suit for permanent injunction on 11-9-2002, which was dismissed on 23-6-2008 and no appeal was filed by the respondent. It was alleged that judgment passed earlier against the appellant had attained finality and respondent had admitted that respondent was never in possession of the suit property. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned Trial Court dismissed the suit on the ground that suit filed by the respondent is hit by Order II Rule 2, CPC and also decided other issues, against which an appeal was filed by the respondent which was allowed and the decree passed by the learned Trial Court was set aside and the case was remanded, hence this appeal.

(2.) Learned Counsel for appellant submits that impugned judgment passed by learned Appellate Court is illegal and deserves to be set aside. Learned Counsel placed reliance on Order II Rule 2, CPC, which reads as under:--

(3.) It is submitted that since the relief of possession was not claimed in the earlier suit, therefore, it is presumed that respondent relinquished that part of the claim. Learned Counsel further submits that even if it is assumed that respondent was not entitled to file the suit subsequently for possession, then too, there was no justification on the part of learned Appellate Court to remand the case. For this contention, reliance is placed on a decision in the matter of Municipal Corporation, Hyderabad Vs. Sunder Singh, 2008 8 SCC 485, wherein it was observed that "before invoking the provision regarding remand of a case by the Appellate Court under Order 41 Rule 23, CPC the conditions precedent laid down therein must be satisfied. Order 41 Rule 23 would be applicable when a decree has been passed on a preliminary issue. The Appellate Court must disagree with the findings of the Trial Court on the said issue. Only when a decree is to be reversed in appeal, the Appellate Court may if it considers necessary, remand the case in the interest of justice". It is submitted that appeal be allowed and impugned judgment passed by the learned Appellate Court be set aside.