This is a second appeal directed against a judgment of the appellant Court below decreeing the plaintiffs suit for permanent injunction and ordering the defendants to close the windows in the southern wall of their house and restraining them from opening any window or ventilator on that side in future.

(2) The case has had a chequered career and the facts may be briefly stated thus: The plaintiff had brought a suit for permanent injunction in the Court of Second Additional Munsiff, Srinagar, on the allegation that he had suffered a substantial injury due to the fact that the defendants had opened windows in the southern wall of their house. The suit was based purely on substantial injury caused to the plaintiff by the act of the defendants. It may be mentioned that the plaintiff had not alleged any right of privacy either customary or otherwise, in his plaint, nor did he seek relief on the basis of such a customary right.

(3) The defence was that the defendants had a right to open the windows in order to derive light and air and that the ventilators had existed since a long time and that the plaintiff had not suffered any injury and was not entitled to injunction.

(4) The suit was in the first instance decreed by the second Additional Munsiff by his judgment dated 20-7-2005. Thereafter the defendants preferred an appeal before the Senior Subordinate Judge, Srinagar, who after hearing the appeal remanded the case after framing 3 fresh issues. It was conceded before the lower appellate Court that the suit in its present form was not maintainable and the plaintiff argued before the appellate Court below that in view of the evidence of the plaintiff that his right of privacy was infringed by the act of the defendants he was entitled to a decree.

The Court framed an issue as to whether the plaintiff had a customary right of privacy in respect of his house. It may be noted that no such plea was taken in the plaint, nor was any such issue framed by the trial Court. It was, therefore, rightly argued by counsel for the defendants that the issues framed in the trial court as also the allegations in the plaint were vague and insufficient to grant any relief to the plaintiff.

The appellate Court below instead of dismissing the plaintiffs suit on this ground made out a new case for the plaintiff, namely, the case that the plaintiff had a customary right of privacy in respect of his house. As the suit was remanded and the order of the lower appellate Court was non-appealable, the defendants could still object to the course adopted by the appellate court below in the present second appeal before this Court. This position has been conceded by counsel for the plaintiff.

After remand by the Senior Subordinate Judge by his order dated 16-3-2007 the trial Court decided the issue as to whether the plaintiff had a customary right of privacy in respect of his house in favour of the defendants and ultimately dismissed the plaintiffs suit by his order dated 2-12-2010.

(5) After this decision the plaintiff went up in appeal before the Senior Subordinate Judge, Srinagar who by his order dated 7-9-1955 again remanded the case under Order 41 Rule 25 C. P. C. after recasting issue No. 1 in the following manner:

Whether there is any customary right of privacy in the locality in which the house in question is situated? O. P. P."

On receiving report from the trial court which was in favour of the plaintiff, the appellate Court below decreed the plaintiffs suit and hence this second appeal to this Court.

(6) From the facts given above it is absolutely clear that although the plaintiff did not amend his plaint to base his claim on customary right of privacy either in the house or in the locality, yet the appellate Court below passed series of orders of remand recasting the issue on these lines. In other words, the lower appellate Court tried to make out a new case for the plaintiff every time without considering the important question as to whether suc