JUDGMENT :

V.K. Gupta, J.

The parties are at variance with respect to the form of this appeal, viz; whether it be treated as a Regular Second Appeal or a Misc. Appeal under Section 104 read with Order 43, Rule 1 (u), C.P.C. To bring about an end to this small, inconsequential controversy, I treat this as a Misc. Appeal in terms of Section 104 read with Order 43 Rule I (u), C.P.C. because undoubtedly the judgment dated 15.1.1998 was passed by the learned Additional District Judge, Solan, in Civil Appeal No. 33-S/13 of 96 and while disposing of the aforesaid appeal the learned Court issued an order of remand to the trial Court for fresh trial of Civil suit No. 418/1 of 1989 by setting aside the judgment dated 12th June, 1996 passed in the aforesaid suit.

2. Brief facts giving rise to the filing of this appeal are that Girdhari Lal deceased (represented by his legal representatives appellants in the present appeal in this Court) had filed Civil Suit No. 199/1 of 1978 against the State of Himachal Pradesh and others including Collector. Solan and private defendants for permanent injunction restraining the defendants in the said suit from interfering in and from cutting removing or in any way dealing with the trees standing upon a piece of land particulars whereof were clearly mentioned in the cause-title of the said suit. This suit was decreed by the learned Senior Sub Judge, Solan on 31st December, 1979 The State of H.P. through Secretary (Forests) and the Collector Solan filed Civil Appeal No. 145-S/13 of 1982 against the aforesaid judgment and decree and the learned Additional District Judge, Solan and Sirmaur Districts, at Solan vide his judgment dated 23rd February, 1983 dismissed the said appeal of the appellant State. Even though the aforesaid appeal was dismissed on 23rd February, 1983, on 6th October, 1989 Civil Suit No. 418/1 of 1989 was filed by the State of Himachal Pradesh through Secretary (Forests) and Collector. Solan District, for declaration to the effect that the judgment and decree dated 31st December, 1979 passed by the learned Senior Sub Judge, Solan in Civil Suit No. 1991 of 1978 was a nullity it should be declared as void and non-est as the same had been passed without jurisdiction and had been obtained by misrepresentation of facts and fraud played by defendant No. 1 etc. etc. The said suit No. 418/1 of 1989 was dismissed by the learned Senior Sub Judge. Solan, on 12th June, 1996. As many as 11 issues were framed in the said suit. Issue No. 8 was with respect to the limitation and the finding on Issue No. 8 by the trial Court in the said suit was that since the decree under challenge was passed on 31st December, 1979 and the appeal against the same had also been decided in 1983 and because the suit had been filed in 1989, it was clearly barred by limitation.

3. Against the aforesaid judgment dated 12th June, 1996, the State of Himachal Pradesh and the Collector, Solan, filed Civil Appeal No. 33-S/13 of 1996 and as noticed at the outset learned Additional District Judge, Solan, vide his judgment dated 15th January 1998 allowed the said appeal and passed an order remanding the suit for trial by the learned Senior Sub Judge, Solan, after framing four additional issues. It is against this judgment that the present appeal has been filed by the appellants.

4. At the very outset, I must record and observe that the learned Advocate General appearing for respondents No. 1 and 2 has fairly and frankly conceded that as far as the ground of fraud for setting aside the decree dated 31st December, 1979 is concerned, the State does not press this ground because fraud has been even though pleaded in the plaint, but indeed the particulars of the fraud were not mentioned in the plaint and because of the mandatory requirement of law as contained in Order 6, Rule 4 Civil Procedure Code, in the absence of particulars of fraud,