1. Present petition is directed against order dated 17.7.2015 passed in Miscellaneous Civil Appeal No.5/2015 by Third Additional District Judge, Damoh in Appeal under order 43 rule 1(r) of the Code of Civil Procedure, 1908 (for short 'CPC'). The Appeal in turn was directed against order dated 13.11.2014 passed by Second Civil Judge Class-II, Damoh in Civil Suit No.31-A/2014; whereby, an application under order 39 rule 1 and 2 of CPC file by the petitioner/plaintiff was allowed. The appellate Court by impugned order while setting aside the order passed by the trial Court remitted the matter for re-examination of application under order 39 rule 1 and 2 and to decide the same along with application preferred by the defendant in his counter suit under the same provision.

2. When the matter is taken up today, it is stated by learned counsel for respondent/defendant that on remission, a fresh order has been passed by the trial Court on 15.2.2016; whereby, the trial Court while dismissing the application preferred by the petitioner/plaintiff has allowed the application filed by the respondent/defendant and has injuncted the petitioner/plaintiff in respect of the suit property. In view whereof, the present petition is rendered infructuous.

3. At this stage, learned counsel for the petitioner while relying upon the judgment in Nagesh Datta Shetti v. State of Karnataka [AIR 2005 SC 1550], has to submit that since correctness of order of remission is the subject matter of present petition, though on remission a fresh order has been passed, the petition cannot be treated to be infructuous.

4. A bare perusal of the judgment, reliance whereof is being placed, reveals that in that matter before the Supreme Court learned Single Judge issued direction to grant occupancy rights in favour of the respondents while remitting the matter to the Tribunal. It was this order for grant of occupancy right which was questioned in writ appeal and the writ appellate Court taking into consideration the decision rendered by the Tribunal on remission observed that the appeal is rendered infructuous.

5. It is rightly submitted on behalf of the respondent that in Nagesh Datta Shetti (supra), the Hon'ble Supreme Court was in seisen with the order passed in an appeal which in turn was in the wake of the direction by the learned Single judge of determining the occupancy right of the petitioner therein. Whereas, in the present case there is no determination of right; instead, because of non-consideration of the respondent's application under Order 39 rule 1 and 2 of CPC, led the appellate Court remit the matter for its consideration alongwith an application preferred by the petitioner for temporary injunction. In view whereof, the petitioner is not benefited by the decision in Nagesh Datta Shetti (supra).

6. As borne out from the facts on record, there were two applications under Order 39 rule 1 and 2 of CPC - one by the plaintiff and another by the defendant who had preferred cross suit before the trial Court. The trial Court instead of dwelling upon both the applications went on to decide the application preferred by the plaintiff and allowed the same by order dated 13.11.2014. The appellate Court in an appeal under Order 43 rule 1(r) of CPC while taking note of the fact that incumbent it was upon the trial Court to have considered both the applications, remitted the matter for a fresh decision by the trial Court.

7. Since a fresh decision has already been taken by the trial Court, it is for the plaintiff now to seek redressal by taking recourse to the remedy available under the Code of Civil Procedure, 1908.

In view whereof, present petition is disposed of finally having been rendered infructuous.