NAND LAL Vs. PURSHOTTAM

JUDGEMENT

(1.) In this revision petition an important point of law is involved which is whether an appellate court has power under O.41 Rules 23, 23-A and 25 C.P.C. to pass an order remanding a miscellaneous application for fresh decision. In other words it is to be seen whether S.141 CPC can be invoked to make the power of remand applicable to matters, arising in the course of a regular suit.

(2.) The facts of the case may be stated briefly at this stage. The non-petitioner plaintiffs filed a suit for permanent injunction in the court of Munsiff Magistrate, Fatehpur. Along with the plaint, they also filed an application under O.39 R.1 and 2 CPC seeking a relief that the applicants be restrained from obstructing them from the use of chaubara and other premises. It may also be mentioned that the parties to the suit are related to each other and there was some dispute as to whether the property in dispute was ancestral property or individual property and who were the persons using it. The learned Munsiff, appointed a commissioner for the inspection of the premises. The injunction application was heard by the trial court and by order dated 25-2-1985, the interim injunction application of the non-petitioners was dismissed. Against this order an appeal was preferred by them before the District Judge, which came to be decided by the Addl. District Judge, Sikar, by his order dated 12-8-86. The learned Addl. District Judge, accepted the appeal and set aside the order of the trial court and remanded the application with direction to re-hear the same and take into consideration the complete evidence of the parties, in an appropriate manner, and if necessary to go to the site and then re-decide the matter. In the meanwhile, both the parties were directed to maintain status quo.

(3.) The defendant petitioners feeling aggrieved against this order, have preferred this revision petition. Without going into the facts of the case, at this stage, it is first of all to be seen whether in a misc. appeal it is open to the appellate court to pass an order of remand, directing the trial court to rehear the matter and give fresh decision.