SHYAM DUTT Vs. ASHOK KUMAR

JUDGEMENT

(1.) This appeal has been filed by the appellant-defendant against the order of the learned District Judge, Sirmaur District at Nahan, whereby the suit has been remanded to the trial Court.

(2.) The respondent-plaintiff had instituted the suit out of which the present appeal arises against the defendant Shyam Dutt for possession of the premises as detailed to the plaint. Preliminary objection was taken by the defendant-appellant on the maintainability of the suit. It was alleged that the suit of the plaintiff was barred by principle of res judicata, since the father of the plaintiff had filed a similar suit against the present defendant which was contested on merits and by judgment and decree dated 21-7-2001 the suit was partly decreed. An appeal was carried to the learned District Judge. Cross-objections were also filed. During the pendency of the appeal and cross-objections, Jagar Nath, who was predecessor-in-interest of the plaintiff, died and the present plaintiff-respondent was substituted in place along with other proforma defendant. By a judgment and decree dated 8-4-2002, the learned District Judge accepted the appeal and dismissed the cross- objections. It was held that the plaintiff could not prove himself to be the owner of the suit premises, hence he was not entitled to claim any relief. It was, thus, submitted that the judgment and decree having attained finality, the present suit for claim of rent and possession of the premises was not maintainable. The learned trial Court framed as many as 11 issues, but treated issue No. 4 as a preliminary issue, which reads :- "4. Whether the suit is barred by principle of res judicata as alleged ? OPD.

(3.) On consideration of the facts it was held that the suit is barred by the principle of res judicata. For this purpose the evidence of the plaintiff, defendant and judgments were considered. An Appeal was preferred in the Court of the learned District Judge, Sirmaur, who by his judgment against which the present appeal has been filed, held that the plaint and the written statement of the earlier litigation between the parties have not been brought on record and as such, findings of res judicata could not be said to be in accordance with law. A direction was issued by the learned Appellate Court that the suit will be tried afresh by affording opportunity to the parties to lead evidence on all the issues and thereafter to decide the matter in accordance with law. The learned Court further directed that even on issue No. 4 the Court shall afford opportunity to the parties to lead afresh evidence, if any, and to decide the issue along with other material on the record. The case was remanded and a direction issued that the case be tried in accordance with law and the directions given in the judgment.