IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 347 of 2010 Date of Decision 7th April ,2011 ________________________________________________________ Summervir and another ….Appellants. Versus Sudershan Kumar ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ________________________________________________________ For the Appellants: Mr. Ajay Sharma, Advocate. For the Respondent: Ms. Devyani Sharma, Advocate. ______________________________________________________________ Dev Darshan Sud, J (oral) This appeal has been preferred by the plaintiffs against the judgment of the learned District Judge, Kangra at Dharamshala setting aside the judgment of the learned Civil Judge (Senior Division), Nurpur in civil suit No. 153/99 whereby a decree has been granted in favour of the appellants herein, restraining the defendant-respondent from causing any obstruction to the user of path by the plaintiffs and further mandatory injunction for demolition. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 2. The plaintiffs had instituted a suit for injunction against the defendant-respondent restraining him from raising any construction over main street/gali which is shown as public path and also for demolition of the property purportedly constructed on the path. 3. On the decree having been passed, the defendant appealed before the learned District Judge, Kangra at Dharamshala. The learned Court holds that the parties have filed contradictory plans and that application moved by the defendant under Order 26 Rule 9 and Order 18 Rule 18 of the Code of Civil Procedure had been wrongly rejected. The Court also relied upon the decision of the High Court of Punjab in Sant Ram Nagina Ram vs. Daya Ram Nagina Ram and others, AIR 1961 528 defining the rights of co-owners. The Court then proceeds that as no revenue expert was appointed as Local Commissioner in order to decide the dispute interse the parties, it would be in the fitness of things if the case is remanded for decision afresh. 4. The appellant is now in appeal. What I find from the judgment is that the learned Court has not given any cogent reason for appointment of Local Commissioner afresh. 5. I need not go into the aspect that in appeal as to what exercise should and ought to have been undertaken by the learned Appellate Court. Wholesale remand cannot be resorted to and it is to be avoided. I find the judgment passed by the learned Appellate Court bereft of reasoning to invoke the provisions of Order 41, Rules 23, 23-A of the Code of Civil Procedure for ramanding the case. In these facts and circumstances of the case, the judgment of the learned District 3 Judge is quashed and set aside. He shall re-admit the file on his record and proceed to decide the case afresh in accordance with law. It will be open to either party to prefer any miscellaneous application(s) if so permitted by law which shall then be disposed of in accordance with the settled principles of law. Parties to appear before the learned Appellate Court on 9th May, 2011. Record, if received, be sent back forthwith. No order as to costs. April 7th , 2011 (Dev Darshan Sud), ms Judge 4