ROOP NARAIN Vs. MAHABIR PRASAD

JUDGEMENT

(1.) This is a civil revision petition under section 115 of the Code of Civil Procedure against the order of the Civil Judge, Kishengarh dated the 19th of Jan., 1952, by which he remanded the case to the court of the Munsif Kishengarh for fresh trial after framing certain issues and setting aside the decree of the first court.

(2.) Kishen Swaroop filed a suit against Mahavir Prasad and Kunj Behari in the court of the Munsif at Kishengarh on the 24th of Jan., 1945, with the allegations that the houses of both the parties are near each other and the defendants had constructed a new latrine near the sitting room of the plaintiff on certain land which belongs to the Government and which constitutes a nuisance for the plaintiff. It was prayed that the use of the latrine by the defendants might be restrained or such other relief as the plaintiff is entitled to be allowed to him. The defendants' case was that they had reconstructed a latrine with some alterations in place of an old one and that the use of the latrine did not create any nuisance. It was also alleged that the plaintiff had recently opened a new door towards the latrine of the defendants to which he was not entitled and the plaintiff has, therefore, no cause for any complaint. Certain issues were framed by the trial court and the parties were asked to lead evidence. After trying the suit the learned Munsif passed a decree in favour of the plaintiff on the 17th of March, 1951, restraining the defendants from using the latrine and directing them to shut an opening of the latrine facing the house of the plaintiff. The defendants went in appeal to the court of the Civil Judge who remanded the case for de novo trial after framing fresh issues. The case of the petitioner in revision is that the learned Civil Judge acted illegally in the exercise of his jurisdiction in remanding the case when the parties had fought the same issues and when there was no reason for allowing parties to fight the same issues afresh.

(3.) The first point which crops up in this revision is whether this revision is covered by the decision of this Court in the case of Purohit Swaroop Narain Vs. Gopi Nath, 1953 R.L.W. 629 : AIR 1953 Raj. p. 137 . It is urged by the learned counsel of the petitioner that the order by which the case has been remanded would become spent force after it is carried out and it would then not touch the merits of the case and the petitioner would therefore be not in a position to take an objection against it in appeal from the final decision. It may be noted that under section 105 of the Code of Civil Procedure grounds can be taken in appeal from a decree regarding any error, defect or irregularity in any order provided such error, defect or irregularity affects the decision of the case. Where such error, defect or irregularity does not affect the decision of the case, they cannot be urged in appeal from the decree. After the case would have been retried and after both the parties would have led their evidence afresh, the effect of the remand order in the present case when the parties are being allowed a second innings to produce their evidence would run out and it would become futile for the parties to challenge the correctness of the remand order in their appeal from the decree. The affect if any of remand order on the decision of the case would be too remote to be noticed as having affected the decision. In this view of the matter, it can be taken that under section 105 of the Code of Civil Procedure the petitioner will not be in a position to raise an objection against the remand order under the circumstances of this case, and as such it cannot be held that this is a case in which an appeal lies directly or indirectly to this Court and the revision is hit by the decision in Purohit Swaroop Narain's case.