RAJKUMAR SAWLANI Vs. JAIPUR DEVELOPMENT AUTHORITY & ANR

JUDGEMENT

(1.) The present appeal has been filed by the appellant-plaintiff under Order XLIII Rule 1(u) of CPC challenging the order dated 2.5.2005 passed by the District Judge, Sawai Madhopur (hereinafter referred to as 'the appellate court') in Civil Regular Appeal Nos. 28/96, whereby the appellate court while allowing the said appeal has set aside the judgment and decree dated 22.5.96 passed by the Civil Judge (SD), Sawai Madhopur (hereinafter referred to as 'the trial court') in Civil Suit No. 48/92(287/83).

(2.) The short facts giving rise to the present appeal are that the appellant-plaintiff had filed the suit against the respondent-Municipal Board in respect of the suit plot. The said suit was resisted by the respondent-defendant by filing the written statement. The trial court framed the issues from the pleadings of the parties. It appears that thereafter the appellantplaintiff submitted an application under Order XII Rule 6 of CPC, relying upon the statements made by the defendant-Board in the written statement and requested the court to decree the suit. The trial court decreed the suit of the appellant- plaintiff vide the judgment and decree dated 22.5.96 restraining the defendant-Board from causing any obstruction to the plaintiff in the possession of the suit property and from transferring or selling the same to any third parties. Being aggrieved by the said judgment and decree, the defendant-Municipal Board had filed the appeal being No. 28/96 before the appellate court. The appellate court vide the judgment and order dated 2.5.05 set aside the decree passed by the trial court and remanded the case to the trial court for deciding the same afresh after hearing all the necessary parties in the suit. Being aggrieved by the said order, the present appeal has been filed.

(3.) It has been sought to be submitted by the learned senior counsel for the appellant that the order passed by the appellate court does not fall within the purview of Order XLI Rule 23 or Rule 23A of CPC and that the appellate court has directed the trial court to hear all the necessary parties, though no such plea was raised before the trial court by any third party. He also submitted that the order passed by the appellate court is vague and ambiguous so far as giving of opportunity of hearing to be given to the necessary parties, was concerned.