(Prayer: Civil Miscellaneous Appeal filed under Order 43 Rule 1 of Civil Procedure Code against the judgment and decree dated 24.08.2018 passed in Appeal Suit No.9 of 2018 by the VI Additional City Civil Judge, Chennai.)

1. This Civil Miscellaneous Appeal has been preferred against the remand order dated 24.08.2018 passed by the Lower Appellate Court in A.S.No.9 of 2018.

2. The defendants / counter claimants are the appellants herein. For the sake of convenience, the parties are ranked as per their rank in the main suit.

3. The plaintiff was inducted as a tenant under the defendants to carry on their Partnership firm under the name and style of “M/s.Mahalakshmi Industries”. Originally, the plaintiff filed a suit in O.S.No.1989 of 2014 for permanent injunction restraining the defendants from forcibly evicting them from the suit property without due process of law. The defendants raised their counter claim in their written statement seeking relief to direct the plaintiff to vacate and deliver vacant possession of the suit property and to determine the mesne profits at Rs.1,36,480/- per month or such other rate from the date of the suit till the date of delivery of possession. The defendants paid appropriate Court fee for the relief of delivery of vacant possession and undertook to pay differential Court fee at such rate of mesne profits determined by the Court. Later, by a memo dated 12.07.2017, the relief of demanding mesne profits was given up.

4. The suit was dismissed for default on 21.09.2017 and in the counter claim, the plaintiff was set exparte. Against the order setting them exparte in the counter claim, the plaintiff filed an application under Order IX Rule 7 of Civil Procedure Code to set aside the exparte order vide I.A.No.13238 of 2017. The plaintiff also filed another interlocutory application to set aside the order dismissing the suit for default under Order IX Rule 9 of Civil Procedure Code vide I.A.No.13239 of 2017. Both the applications were dismissed by a common order dated 27.10.2017. The counter claim was posted for exparte evidence. On 01.11.2017, the respondent side evidence was closed and exparte evidence was taken. On 06.11.2017, an exparte decree came to be passed. Against the exparte decree dated 06.11.2017, the plaintiff has preferred an appeal in A.S.No.9 of 2018. The Lower Appellate Court allowed the appeal and restored the entire suit and remanded the matter for fresh trial on the ground that maintainability of the counter claim is a triable issue and that all the issues framed in the suit were not decided and therefore, directed the Trial Court to give opportunity to both the parties to adduce evidence to decide all the issues. Against the said judgment and decree passed in A.S.No.9 of 2018 dated 24.08.2018, the defendants have preferred the above Civil Miscellaneous Appeal.

5. The learned counsel for the appellant would contend that the order passed by the Lower Appellate Court is contrary to law and the remand order is bad. When the exparte decree alone was challenged, the Lower Appellate Court has set aside the order passed in the main suit dismissing it for default also without any appeal therefor. The Lower Appellate Court also failed to consider the conduct of the respondent / plaintiff in protracting the matter and erroneously directed the Trial Court to decide all the issues which are irrelevant to the counter claim. He would rely on the judgments of the Hon’ble Supreme Court in JAG MOHAN CHAWLA VS. DERA RADHA SWAMI SATSANG AND OTHERS [AIR 1996 SC 2222] and RAMRAMESHWARI DEVI AND OTHERS VS. NIRMALA DEVI AND OTHERS [2011 (8) SCC 249] in support of his contention.

6. Per contra, learned Senior Counsel for the respondent would contend that when seven issues were framed by the Trial Court, it is bound to answer all the issues, whereas the Trial Court has taken the issue with respect to delivery of vacant possession alone as a point for consideration and dismissed the interlocutory applicat