1. - This misc. appeal under Order 43, Rule 1 (u) CPC has been filed against the order dated 17.4.2003 passed by learned Addl. District & Sessions Judge No.8, Jaipur City, Jaipur (hereinafter 'the lower appellate court') in regular appeal No. 24/2002 setting aside the judgment dated 22.4.2002 and consequent decree of possession passed by the learned Addl. Civil Judge (Jr. Division) & Judicial Magistrate (West) Jaipur City, Jaipur (hereinafter 'the trial court') in civil suit No. 599/1998 and remanding the case for retrial.

2. The back-ground facts of the case are that the respondent defendant Shyam Lal (hereinafter 'the defendant') had in an earlier innings qua the suit property filed a suit for permanent Injunction No.177/97 Shyam Lal v. Sita Devi (hereinafter 'the earlier suit') in the Court of learned Addl. Civil Judge, Jaipur City, Jaipur claiming himself to be a tenant and seeking a judgment and decree that he not be dispossessed by the defendant landlord - Sita Devi (plaintiff appellant now in this appeal) except by due process of law i.e without any of the grounds for eviction as set out in section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter 'the Act of 1950') being made out. The case set up in the aforesaid "earlier suit" was that the nature of Shyam Lal's possession was as a tenant and not a licencee in terms of the agreement executed between the parties. The suit was contested and the defendant therein Sita Devi (now the plaintiff appellant in this appeal) contended that Shyam Lal was a mere licencee. The learned trial court vide judgment and decree dated 16.9.1998 in the "earlier suit' held Shyam Lal to be a licencee on the basis of Ex.A/1 which was construed as a licencee. It was also held that the licence by Sita Devi having been revoked, Shyam Lal was rendered a tress passer albeit he could be dispossessed only by due process of law.

3. The judgment and decree dated 16.9.1998 passed by the learned Addl. Civil Judge (Jr. Div.) & Judicial Magistrate No.3, Jaipur City, Jaipur holding Shyam Lal to be a licencee and a tress passer subsequent to the revocation of his licence was not put to challenge and attained finality.

4. Armed with the final judgment and decree dated 16.9.1998 Sita Devi filed her own Suit No. 599/1998 Sita Devi v. Shyam Lal (hereinafter 'the subsequent suit') for possession.

5. On notice, Shyam Lal as defendant in the subsequent suit filed a written statement of denial. Six issues were framed which are as under:

"1- vk;k izfroknh okni= dh pj.k la0 ,d esa of.kZr nqdku esa okfnuh dh vkSj ls cgSfl;r ykblsalh dkfct gSA

2- vk;k okni= dh pj.k la0 nks esa of.kZr 'krksZa ij izfroknh us okfnuh ls fookfnr nqdku dk dCtk izkIr fd;kA

3- vk;k okfnuh fookfnr nqdku izfroknh ls [kkyh djkdj nqdku ij okdbZ dCtk izkIr djus dh vf/kdkjh gSA

4- vk;k okfnuh dks dksbZ okn dkj.k mRiUu ugha gksus ls nkok okfnuh [kkfjt fd;s tkus ;ksX; gSA

5- vk;k okfnuh us okn ewY;kadu euekus :i ls fd;k gS ;fn ,slk gS rks bldk nkos ikdZ D;k izHkko gSA

6- vuqrks"kA"

6. Of seminal import was issue No.1 aforesaid. The learned trial court however found the said issue as hit by res-judicata in view of the determination of that very question with regard to the nature of the possession of the defendant as that of a licencee as held in his own "earlier suit" (No. 177/97) decreed on 16.9.1998. Therein it was concluded that Sita Devi was the licensor and Shyam Lal a licence qua the suit property. Based thereon the learned trial court proceeded to address the other issues before it and decree the plaintiff's suit No. 599/1998 (subsequent suit) for possession under its judgment and decree dated 22.4.2002.

7. Aggrieved of the judgment and decree, dated 22.4.2002 in the "subsequent suit" (civil suit No. 599/1998 by the learned Addl. Civil Judge (Jr. Div.) Jaipur West, Jaipur) a regular civil first appeal under section 96 CPC followed by the judgment debtor Shyam Lal was filed before the District & Sessions Judge, Ja