DEVKI NAND Vs. JAI KISHAN

JUDGEMENT

(1.) This appeal is against the judgment dated 7.7.2001 passed by learned District Judge, Kinnaur Civil Division at Rampur Bushahr in Civil Appeal No. 8 of 2001.

(2.) The brief facts are that Jai Kishan plaintiff filed a suit for permanent prohibitory injunction against Devki Nand defendant, restraining him from interfering in any manner in the use of path by plaintiff which passes through khasra Nos. 17, 49/1, 50/1 and 51/1. The suit was contested by defendant and was dismissed by learned Sub Judge 1st Class Rampur Bushahr on 14.3.2001. The plaintiff filed an appeal against judgment, decree dated 14.3.2001 and in the appeal plaintiff filed an application under Order 6 Rule 17 read with Section 151 CPC for amendment of plaint. The plaintiff wanted to plead more facts in para-1 of the plaint and he wanted to add paras 1-A and 2-A also in the plaint. This application was opposed by defendant. The learned District Judge allowed the amendment application on 7.7.2001 and remanded the suit to the trial Court for disposal in accordance with law. The defendant is in appeal in this Court against judgment dated 7.7.2001.

(3.) The learned Counsel for the appellant has submitted that after conclusion of the arguments the amendment application was filed before the lower Appellate Court and therefore, the application was not maintainable. He has submitted that the lower Appellate Court has ordered open remand without recording a finding whether additional issues emerge from the amendment or further evidence is required after amendment. In alternative he has submitted that at the most the District Judge should have given clear direction to the trial Court regarding framing of fresh issues or recording of further evidence, if so required. The District Judge has ordered retrial without considering the case whether any further evidence is required in the case or not. The learned Counsel for the respondent-plaintiff has supported the impugned judgment.