HARIOM Vs. DWARKA PRASAD

JUDGEMENT

(1.) THIS second appeal under Section 100 CPC has been filed against the judgment and decree dated 22.04.2013, passed by the Additional District Judge, Bandikui, District Dausa in appeal No. 8/2011 setting aside the judgment and decree dated 03.08.2011, passed by the Civil Judge (S.D.), Bandikui, District Dausa dismissing the eviction suit filed by the plaintiffs -respondent's (hereinafter 'the plaintiff). Consequent to the order of the first appellate court, the plaintiff's suit for eviction against the defendant -appellant (hereinafter the defendant) has been revived on the remand for retrial by the first appellate court. Counsel for the defendant has submitted that the order dated 22.04.2013 passed by the first appellate court remanding the matter for retrial on taking the evidence of the plaintiff is contrary to the judgment of the Hon'ble Supreme Court in the case of M/s. Shiv Cotex Vs. Tirgun Auto Plast P. Ltd & Ors. (decided on 30.08.2011 in Civil Appeal No. 7532/2011). It has been submitted that the plaintiff's eviction suit was dismissed by the trial court on account of no evidence being laid by the plaintiff in spite of over a dozen opportunities. Counsel submits that the first appellate court has passed an unreasoned order only on misplaced ground of sympathy to the prejudice of the defendant, who will be put again through the process of trial in the suit which the plaintiff had prolonged without just cause and hence had been rightly dismissed by the trial court.

(2.) I have heard the counsel for the defendant.