DB Civil Special Appeal No. 28/1999 M/s Dwarkesh Estates Pvt Ltd Vs Urban Improvement Trust,Jaipur & ors 26.2.2009 Hon'ble Mr Justice Ashok Parihar Hon'ble Mr Justice GS Sarraf Mr Mahendra Singh – for appellant Mr Rinesh Gupta – for respondents BY THE COURT: A suit for declaration and permanent injunction filed by the plaintiff appellant was partly allowed by the trial court vide judgment and decree dated 25.8.1978. While rejecting the prayers for declaration and injunction the trial court, however, ordered that the plaintiff appellant was entitled for refund of Rs.1,38,140.30 paise as deposited by them at the time of auction. The above judgment and decree passed by the trial court came to be challenged by the respondent-UIT before this court. The plaintiff appellant also submitted their cross objections in Civil Regular First Appeal filed by the respondent UIT. The appeal filed by the UIT came to be dismissed by this court for non prosecution, however, cross objections filed by the plaintiff appellant were also dismissed by the court in view of dismissal of the first appeal filed by the respondent UIT. On Leave to Appeal filed by the plaintiff appellant the matter was remanded back by the Hon'ble Supreme Court to decide cross objections filed by the plaintiff appellant afresh in accordance with law. It may also be mentioned here that during pendency of the suit, plaintiff appellant had filed an application for amendment in the plaint, however, the application was dismissed by the trial court vide order dated 25.8.1978. On remand of the matter from the Supreme Court, learned Single Judge allowed the cross objections filed by the plaintiff appellant vide order dated 17.3.1999. While allowing the amendments sought by the plaintiff appellant subject to payment of cost the learned Single Judge ordered as under:- “A close scrutiny of impugned decree and judgment demonstrates that the decision of amendment application goes in the root of the matter and I have no option but to set aside the entire findings of the learned court below. Resultantly, the cross objections are allowed. The impugned judgment and decree stand set aside and the case is remanded to the court below to decide it afresh in the light of the amended plaint. Fourteen days time is granted to the plaintiff to file amended plaint and to pay cost to the defendant. The defendant, if so advised, may substitute Jaipur Development Authority in its place. No party shall be permitted to adduce evidence and the trial court shall adjudicate upon the case on the basis of the evidence already adduced. Parties are directed to appeal before the court below on April 1, 1999. Deputy Registrar (Judicial) shall arrange the remittance of the record within a week. The case shall be disposed of by the learned trial court as expeditiously as possible preferably within six months from the date of receipt of this order.” The above order passed by the learned Single Judge has again been challenged by the plaintiff appellant in the present Special Appeal with the following prayers:- “It is therefore, prayed that the Special Appeal may kindly be allowed with costs, modifying the judgment of the First Appellate Court by holding that the order of remand is illegal. It is further prayed that the Hon'ble Division Bench may kindly decree the suit in favour of the plaintiff appellant in terms of the amendment prayed for by the plaintiff under the amendment application, which has been allowed by the learned Single Judge.” Learned counsel for the plaintiff appellant has submitted that instead of remanding the matter back to the trial court this Court should have decreed the suit filed by the plaintiff appellant as per amendment allowed by the learned Single Judge in the plaint. It has been submitted that in view of the observations made by learned Single Judge the dismissal of the regular appeal filed by the respondent UIT would automatically revive, whereas, the order of dismissal of appeal, filed by the UIT, by this Court never came to be challenged further by the UIT concerned. After having carefully gone through the material on record, in our opinion, submissions made by the learned counsel for the plaintiff appellant are wholly misconceived and untenable. As has already been referred to above, the relief granted by the trial court earlier to the plaintiff appellant was only an ancillary relief to the main prayer which, as a matter of fact, had been rejected by the trial court. Amendment in the plaint having been accepted by the learned Single Judge considering the prayer for decreeing the suit in toto, it is only for the trial court to decide the suit afresh as per amendment made in the plaint in accordance with law. Even otherwise, in case the suit is now decreed by the trial court the earlier order passed by the trial court would not survive. Since, after due consideration, proper discretion has already been used by the learned Single Judge, in the facts and circumstances, we find no ground for any further interference. The appeal is dismissed accordingly as having no merits. However, the trial court may now decide the suit as expeditiously as possible, preferably within six months. The record be sent back immediately. (GS Sarraf) J. (Ashok Parihar) J. bnsharma