GULSHER Vs. SANTOSH SINGH

JUDGEMENT

(1.) The appellants alongwith one Hanif son of Noor Mohammad were the defendants in the Civil Suit No. 19/1 of 93/92 filed by respondent Santokh Singh for permanent injunction restraining them from interfering in his possession over the suit and alleging himself as owner in possession thereof. The defendants had contested the suit and denied the claim of the plaintiff and pleaded that they have been in possession as owners. When the trial of the suit was at the last stage, the plaintiff filed application under Order 22 Rule 4 CPC for bringing on record the legal representatives of defendant Hanif, who had died in the meantime, after setting aside the abatement. The said application was not allowed by the trial Court by order dated 10.9.1999, as a result of which the suit of the plaintiff stood dismissed as abated. Feeling aggrieved, the plaintiff filed appeal before the District Judge, which was allowed by the impugned order dated 18.12.1999 and the case was remanded to the trial Court to decide it afresh after bringing on record the legal representatives of deceased defendant Hanif. The defendants have challenged this order by filing this appeal under Order 43 Rule l(u) CPC.

(2.) Learned Counsel for the plaintiff has raised preliminary objection that the present appeal is not maintainable under Order 43 Rule l(u) CPC as in the appeal before the District Judge, be could not pass appealable decree had he not remanded the case. According to learned Counsel only that order of remand is appealable which has been passed under Order 41 Rule 23 or 23 -A and in which case appeal would lie from the decree of the appellate Court,.

(3.) Before dealing with this point we may refer to some other facts, which are relevant. These are that some of the defendants alongwith Hanif had also filed counter civil suit No. 77/1 of 91, inter alia, for injunction, which was consolidated with other suit and tried together. In the counter suit also after the death of Hanif, an application under Order 22 Rule 3 CPC for bringing on record his legal representatives after setting aside the statement was filed, which met the same fate and was dismissed by the trial Court. The defendants who were plaintiff in counter suit did not prefer appeal against the order of dismissal of the application under Order 22 Rule 3 CPC, however, they preferred cross -objections in the appeal filed by Santokh Singh, the plaintiff in other suit. These cross -objections were also dismissed by the common order, which is subject matter of this appeal but against the dismissal of the cross -objections the defendants have filed Civil Revision Petition No. 160 of 2000, which is pending in this Court.