SUMMERVIR Vs. SUDERSHAN KUMAR

JUDGEMENT

(1.) DEV Darshan Sud, J (oral) This appeal has been preferred by the plaintiffs against the judgment of the learned District Judge, Kangra at Dharamshala setting aside the judgment of the learned Civil Judge (Senior Division), Nurpur in civil suit No. 153/99 whereby a decree has been granted in favour of the appellants herein, restraining the defendant-respondent from causing any obstruction to the user of path by the plaintiffs and further mandatory injunction for demolition.

(2.) THE plaintiffs had instituted a suit for injunction against the defendant-respondent restraining him from raising any construction over main street/gali which is shown as public path and also for demolition of the property purportedly constructed on the path.

(3.) I need not go into the aspect that in appeal as to what exercise should and ought to have been undertaken by the learned Appellate Court. Wholesale remand cannot be resorted to and it is to be avoided. I find the judgment passed by the learned Appellate Court bereft of reasoning to invoke the provisions of Order 41, Rules 23, 23-A of the Code of Civil Procedure for ramanding the case. In these facts and circumstances of the case, the judgment of the learned District Judge is quashed and set aside. He shall re-admit the file on his record and proceed to decide the case afresh in accordance with law. It will be open to either party to prefer any miscellaneous application(s) if so permitted by law which shall then be disposed of in accordance with the settled principles of law. Parties to appear before the learned Appellate Court on 9th May, 2011. Record, if received, be sent back forthwith. No order as to costs.