Gyanendra Pratap Singh vs Yogendra Pratap Singh and others

Pankaj Mithal, J.

Heard counsel for the parties.

This Second Appeal is directed against judgment and order dated 30.7.2011 passed by the Additiional District & Sessions Judge in Civil Appeal No. 46 of 2010 whereby the judgment and order of the court of first instance dismissing the plaintiffappellant''s suit for permanent injunction has been set aside and the matter has been remanded.

The submission of learned counsel for the plaintiffappellant is that he was denied opportunity to crossexamine the witnesses of the defendantsrespondents and it is for this reason the matter was remanded but even then provision for crossexamining the witnesses has not been made while remanding.

Sri Suresh Singh, learned counsel for the defendantrespondent No.1 submits that the plaintiffappellant was given full opportunity and he had crossexamined the witnesses also therefore, the remand is not justified.

I have considered the impugned judgment and order and the submissions advanced by the parties.

A plain reading of the impugned judgment and order reveals that the plaintiffappellant had crossexamined the witnesses on 3.2.2010 and 5.2.2010 but probably on the next date fixed i.e. 8.2.2010 for completion of crossexamination, he failed to complete the same. The court closed the evidence and fixed date for arguments. Thereafter proceeded to decide the suit. The appellate court below remanded the matter as the record failed to reflect that the plaintiffappellant was heard, before pronouncing the judgment. The appellate court below has not commented or recorded any finding with regard to denial of opportunity to the plaintiffappellant to crossexamine the witnesses.

In view of the aforesaid facts and circumstances when the suit is yet to be decided again by the trial court and there is uncertainly that the plaintiffappellant had completed the crossexamination, it is considered expedient in the interest of justice to permit the plaintiffappellant to make an application for completion of the crossexamination before the trial court before it proceeds to decide the suit finally. In the event any such application is moved by the plaintiffappellant before the trial court within 15 days from today, the court will consider it strictly in accordance with law and thereafter proceed to decide the suit on merits within a period of two months from the date of production of the certified copy of this order.

The appeal involves no substantial question of law. In fact the plaintiffappellant ought to have filed First Appeal From Order against the impugned order under Order XLIII, Rule (1)(r) CPC.

The appeal is dismissed with the above observation.