- (1.) THIS misc. appeal under Order 43 Rule 1(u) CPC has been filed against the order dated 17.4.2003 passed by learned Addl. District & Sessions Judge No.8, Jaipur City, Jaipur (hereinafter 'the lower appellate court') in regular appeal No. 24/2002 setting aside the judgment dated 22.4.2002 and consequent decree of possession passed by the learned Addl. Civil Judge (Jr. Division) & Judicial Magistrate (West) Jaipur City, Jaipur (hereinafter 'the trial court') in civil suit No. 599/1998 and remanding the case for retrial.
(2.) THE back -ground facts of the case are that the respondent defendant Shyam Lal (hereinafter 'the defendant') had in an earlier innings qua the suit property filed a suit for permanent injunction No.177/97 Shyam Lal v. Sita Devi (hereinafter 'the earlier suit') in the Court of learned Addl. Civil Judge, Jaipur City, Jaipur claiming himself to be a tenant and seeking a judgment and decree that he not be dispossessed by the defendant landlord ­ Sita Devi (plaintiff appellant now in this appeal) except by due process of law i.e without any of the grounds for eviction as set out in section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter 'the Act of 1950') being made out. The case set up in the aforesaid "earlier suit" was that the nature of Shyam Lal's possession was as a tenant and not a licencee in terms of the agreement executed between the parties. The suit was contested and the defendant therein Sita Devi (now the plaintiff appellant in this appeal) contended that Shyam Lal was a mere licencee. The learned trial court vide judgment and decree dated 16.9.1998 in the "earlier suit' held Shyam Lal to be a licencee on the basis of Ex.A/1 which was construed as a licencee. It was also held that the licence by Sita Devi having been revoked, Shyam Lal was rendered a tress passer albeit he could be dispossessed only by due process of law. The judgment and decree dated 16.9.1998 passed by the learned Addl. Civil Judge (Jr. Div.) & Judicial Magistrate No.3, Jaipur City, Jaipur holding Shyam Lal to be a licencee and a tress passer subsequent to the revocation of his licence was not put to challenge and attained finality.
(3.) ARMED with the final judgment and decree dated 16.9.1998 Sita Devi filed her own suit No. 599/1998 Sita Devi v. Shyam Lal (hereinafter 'the subsequent suit') for possession.;