HARIBANDHU SAHOO Vs. DAYANIDHI SAHOO

JUDGEMENT

(1.) THIS appeal is against the order dated 23.2.2012 passed by the learned District Judge, Puri in R.F.A. No. 78 of 2011 setting aside the judgment and decree of the learned Civil Judge (Junior Division), Puri in C.S. No. 171 of 2010 directing an open remand of the suit to the trial court for fresh disposal. The plaintiff -appellants filed the suit for permanent injunction which was decreed by the learned trial court vide its judgment dated 31.8.2011. The unsuccessful respondent -defendant preferred appeal before the learned District Judge who has passed the impugned order remanding the case to the trial court for fresh disposal after affording opportunity to the parties to bring in necessary amendments in their pleadings and adducing further evidence.

(2.) OBSERVING that the suit for permanent injunction without seeking for a declaration of title, particularly when the defendant refutes the title of the plaintiff over the suit land, is not maintainable and that the learned trial court under such circumstances should have directed the plaintiffs to amend the plaint in order to cure the defects, the learned appellate court passed the impugned order remanding the case to the trial court with direction to allow opportunity to the parties to make admissible amendment and to record further evidence adduced by the parties.

(3.) LEARNED counsel for the respondent admits that the order of open remand, in the facts and circumstances of the case, is not sustainable.