BRIJESH KUMAR Vs. JAGANNATH PRASAD

JUDGEMENT

(1.) This petition is directed against the order dated 20.3.2013 passed in Case No. 2A/2010 (CS) by Civil Judge, Class-2 Dabra. The plaintiff/respondent filed a suit for declaration and permanent injunction. The said suit was dismissed on 30.8.2005 (at that point of time numbered as 16A/2002). Against this judgment and decree the present petitioner filed appeal before First Additional District Judge, Dabra which was registered as regular Civil Appeal No. 45A/2005. The appellate Court passed its judgment on 1.8.2006. Para 9 of the judgment shows that the matter was remanded back to the trial Court by the appellate Court with the direction to record evidence of the parties on two issues. The said issues are as under:-

(2.) The said order of appellate Court was unsuccessfully tested before this Court in M.A. No. 836/2006 by judgment dated 28.7.2009. This Court dismissed the appeal. In absence of any further challenge to the appellate order aforesaid, the said judgment has attained finality.

(3.) The petitioner/defendant No.1 preferred an application before the trial Court under Order 6 Rule 17 C.P.C. The said application was opposed by the other side. By impugned order dated 20.3.2013, the Court below has rejected the said application. Criticizing this order Shri Nirankari learned counsel for the petitioner submits that the appellate Court has permitted both the parties to lead evidence and, therefore, the trial Court should have allowed the said application.