JUDGMENT

This appeal is filed by the defendants calling in question the order dated 25.11.2016 passed in R.A.No.113/2013 by II Addl. Senior Civil Judge, Mangalore, Dakshina Kannada, (First Appellate Court) thereby remanding the matter to the Trial Court for fresh adjudication and consideration.

2. The ranking of the parties are referred to as before the Trial Court for convenience and easy reference.

3. The plaintiff-respondent herein has filed the suit for mandatory injunction praying to restore the suit schedule property to its original condition by removing drainage, water, electricity line and also to close the existing road. In the suit, the plaintiff has described the suit schedule property with survey number, village and extent, but has not mentioned the boundaries. On these reasons, the trial Court has dismissed the suit. Being aggrieved by that, the plaintiff has preferred the regular appeal before the First Appellate Court and filed I.A.1 under Order VI Rule 17 of CPC for amendment in the schedule property by mentioning the boundaries and I.A.No.2 under Order XXVI Rule 9 of CPC for appointment of Court Commissioner. The First Appellate Court has allowed the appeal and remanded the matter to the trial Court with liberty to file applications for amendment and for appointment of Court Commissioner before the trial Court. This order of remand is challenged in the instant appeal.

4. Learned counsel for the appellants/ defendants submitted that the First Appellate Court ought not to have remanded the matter by reserving liberty to the plaintiff to file such interlocutory applications as filed before the First Appellate Court and the said remand is beyond the scope of Order XLI Rule 23, Rule 23A and Rule 25 of CPC. He placed reliance on the judgment of the Hon’ble Supreme Court in the case of SYEDA RAHIMUNNISA VS. MALAN BI (DEAD) BY LEGAL REPRESENTATIVES AND ANOTHER1. Therefore, prays to set aside the order of remand passed by the First Appellate Court.

5. Learned AGA appearing for respondent No.2 supported the submission made by learned counsel for the appellants.

6. On the other hand, learned counsel for the plaintiff/respondent No.1 has justified the order passed by the First Appellate Court.

7. The plaintiff has filed the suit for mandatory injunction by contending that he is the owner of suit schedule property. Removing drainage, water, electricity line and formation of road on his road without due process of law is amounting to infringement of his right. Therefore, he filed the suit for mandatory injunction for restoring his suit schedule property in its original condition. While filing the suit, in the plaint the plaintiff has not mentioned the

1 (2016) 10 SCC 315

boundaries of suit schedule property. Therefore, the trial Court has dismissed the suit, since the suit schedule property cannot be identified for grant of relief, since the boundaries are not mentioned. Thus, the trial Court has dismissed the suit.

8. The plaintiff has filed I.A.No.1 under Order VI Rule 17 of CPC for seeking amendment of pleadings of plaint by mentioning the boundaries and I.A.No.2 is filed for appointment of Court Commissioner. The First Appellate Court has not considered the said interlocutory applications on merits and permitted the plaintiff to file said applications before the trial Court and accordingly, remanded the matter to the trial Court for fresh consideration. The facts and circumstances in Syeda Rahimunnisa’s case are different from the instant case. In the above cited case, the fact is that the plaintiff has not pleaded and without there being pleadings, it is held that the order of remand is not permissible. But in the present case, only amendment is sought to mention the boundaries in the schedule property, but described the property. This makes difference in the cited case and in the present suit and all the necessary pleadings are in the plaint. Only for identification of property is concerned, I.A.No.1 is filed for amendment.