DEBENDRA CHOUDHURY Vs. JAGANNATH CHOUDHURY

JUDGEMENT

(1.) Plaintiff is the appellant against judgment dated 31.1.1996 passed by the Civil Judge (Senior Division), Chatrapur, in Title Appeal No. 18 of 1993 remanding the matter to the trial court with a direction for fresh disposal after framing certain issues.

(2.) The plaintiff had filed the suit for permanent injunction restraining the defendant from constructing over six inches of space on the R.C. roof belonging to the plaintiff and other ancillary reliefs. The suit having been dismissed, the plaintiff filed the aforesaid appeal. The lower appellate court held that certain issues had not been framed and, therefore, it directed that the trial court should dispose of the suit after framing certain new issues, as indicated in paragraph 8 of the judgment of the lower appellate court.

(3.) The learned counsel appearing for the plaintiff-appellant submitted that most of the issues directed to be framed by the appellate court were, in fact, covered by the issues already framed by the trial court and, at any rate, there was no necessity to remand the entire matter to the trial court instead of remitting only the new issues for finding by trial court, so envisaged in Order 41, Rule 25 of the Code of Civil Procedure. Though there is some substance in the contention raised by the learned counsel for the appellant in the sense that some of the issues framed by the lower appellate court appear to be similar to the issues which had been framed, I do not find that any prejudice has been caused to the appellant by the order of the lower appellate court remanding the entire matter to the trial court. In fact, the present appellant appears to have been indirectly benefited by the order of remand, inasmuch as an adverse judgment against him has been set aside. I do not find any merit for interfering with the order of remand at the instance of the plaintiff-appellant who, in fact, has succeeded before the lower appellate court.