RAJESH PARIHAR Vs. CHANCHAL KUMAR

JUDGEMENT

(1.) At the request of learned counsel for the parties, this appeal is heard finally.

(2.) The appellant/plaintiff is aggrieved against the order by which the first appellate court allowed the appeal of the defendant/respondent and remanded the matter back to the trial court after allowing the respondent's application under Section 151 CPC submitted on 3.8.2001. Brief facts of the case are that in a suit for eviction of tenant, the defendant submitted an application for amendment of the written statement in the trial court on 14.3.2001. The trial court after hearing both the parties allowed the application by order dated 5.5.2001. The defendant was permitted to insert paras no.5 to 9 as additional pleas. Amended written statement was filed on 21.5.2001 and the Court held that there is no need to frame additional issues. The case was fixed for evidence of the defendant and the date was given as 3.8.2001. On 3.8.2001, the defendant submitted an application under Section 151 CPC and prayed that on the pleas which were allowed by court's order dated 5.5.2001, he may be permitted to cross examine the plaintiff's witnesses. The said application was dismissed by the trial court on 5.9.2001 on the grounds that the facts were in the knowledge of the defendant and he has already cross examined the plaintiff's witnesses on the points which he has raised in the written statement. It appears that the said order was challenged by the defendant by filing SB Civil Revision Petition No.1199/2001 but that was withdrawn on 19.2.2002 with liberty to raise the point in appeal. The defendant after decision of the trial court against him preferred appeal to challenge the decree. In the appeal, he raised the ground that the trial court committed error of law in rejecting his application under Section 151 CPC vide order dated 5.9.2001. The appellate court held that since the amendment was allowed by the trial court in the written statement, therefore, the trial court should have given opportunity to the defendant to cross examine the plaintiff and his witnesses on the pleas which have been incorporated by amending the written statement. The first appellate court after holding so remanded the matter to the trial court vide impugned order.

(3.) The first appellate court's order of remand dated 24.5.2005 has been challenged by the appellant in this appeal. According to learned counsel for the appellant, the challenge to the order dated 5.9.2001 in first appeal was not on specific grounds and it was challenged in a very cursory manner, therefore, the first appellate court should not have set aside the order dated 5.9.2001 and should not have remanded the matter back to the trial court.