JUDGMENT 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 It was also held that the licence by Sita Devi having been revoked, Shyam Lal was rendered a tress passer albeit he could be dispossessed only by due process of law. 3. 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. 4. 3. 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. 4. 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. 5. On notice, Shyam Lal as defendant in the subsequent suit filed a written statement of denial. Six issues were framed which are as under: " 1- vk;k izfroknh okni= dh pj.k la0 ,d esa of.kZr nqdku esa okfnuh dh vkSj ls cgSfl;r ykblsalh dkfct gSA 2- vk;k okni= dh pj.k la0 nks esa of.kZr 'krksZa ij izfroknh us okfnuh ls fookfnr nqdku dk dCtk izkIr fd;kA 3- vk;k okfnuh fookfnr nqdku izfroknh ls [kkyh djkdj nqdku ij okdbZ dCtk izkIr djus dh vf/kdkjh gSA 4- vk;k okfnuh dks dksbZ okn dkj.k mRiUu ugha gksus ls nkok okfnuh [kkfjt fd;s tkus ;ksX; gSA 5- vk;k okfnuh us okn ewY;kadu euekus :i ls fd;k gS ;fn ,slk gS rks bldk nkos ikdZ D;k izHkko gSA 6- vuqrks"kA " 6. Of seminal import was issue No.1 aforesaid. The learned trial court however found the said issue as hit by res-judicata in view of the determination of that very question with regard to the nature of the possession of the defendant as that of a licencee as held in his own "earlier suit" (No. 177/97) decreed on 16.9.1998. Therein it was concluded that Sita Devi was the licensor and Shyam Lal a licence qua the suit property. Based thereon the learned trial court proceeded to address the other issues before it and decree the plaintiff's suit No. 599/1998 (subsequent suit) for possession under its judgment and decree dated 22.4.2002. 7. Aggrieved of the judgment and decree, dated 22.4.2002 in the "subsequent suit" (civil suit No. 599/1998 by the learned Addl. Civil Judge (Jr. Div.) Jaipur West, Jaipur) a regular civil first appeal under section 96 CPC followed by the judgment debtor Shyam Lal was filed before the District & Sessions Judge, Jaipur City, Jaipur. It came to be transferred to the Court of Addl. District & Sessions Judge No.8, Jaipur City, Jaipur. 8. Civil Judge (Jr. Div.) Jaipur West, Jaipur) a regular civil first appeal under section 96 CPC followed by the judgment debtor Shyam Lal was filed before the District & Sessions Judge, Jaipur City, Jaipur. It came to be transferred to the Court of Addl. District & Sessions Judge No.8, Jaipur City, Jaipur. 8. The lower appellate court by the impugned judgment dated 17.4.2003 held that issue No.1 before the trial court in the "subsequent suit" was not hit by res-judicata in-spite of the findings on issues No.2 and 4 in the "earlier suit". Consequently issue No.1 in the "subsequent suit" should have been decided on merits on the basis of evidence on record of the said 'subsequent suit'. Relying on the judgment of the Hon'ble Supreme Court in the case of Gram Panchayat of Village Naulakha v. Ujagar Singh and others, 2000 SC 3732 the trial court held that any finding on the issue of title which was incidental in a suit for permanent injunction could not operate as a res-judicata. So holding the lower appellate court concluded that it was incumbent upon the trial court to address issue No.1 before it as to the nature of the defendant's possession on the basis of the evidence led before it and decide the said issue afresh on merits. In the lower appellate court's view, the trial court not having done so it had committed an error, rectification whereof required the setting aside of the judgment and decree dated 22.4.2002 passed in "the subsequent suit" i.e civil suit No. 599/1998. Order of remand and re-adjudication on merits of civil suit No. 599/1998 ensued. That is under challenge in this misc appeal. 9. Sr. Counsel Mr. M.M Ranjan assisted by Ms. Nikita Sood has submitted that the learned lower appellate court misdirected itself completely in construing the dispute between the parties as one relating to a question of title and relying upon the Judgment of the Hon'ble Apex Court in the case of Gram Panchayat of Village Naulakha (supra). Sr. Counsel submitted that the only dispute even from the pleadings of the parties both in "earlier suit" and "subsequent suit" was as to the nature of the possession of the respondent defendant- licencee or tenant. There was never even a whisper of dispute of title. Sr. Counsel submitted that the only dispute even from the pleadings of the parties both in "earlier suit" and "subsequent suit" was as to the nature of the possession of the respondent defendant- licencee or tenant. There was never even a whisper of dispute of title. While the plaintiff's case in suit No. 599/1998 (subsequent suit) was that the defendant was a licencee that of the defendant was that he was a tenant so too in the "earlier suit". He submitted that the dispute was encapsulated in issue no.1 in suit No. 599/98 which issue was evidently covered by the earlier findings on issues No.2 and 4 before the trial court in the "earlier suit" (No. 177/1997 i.e the court of learned Addl Civil Judge (Jr.Div) & Judicial Magistrate, No.3, Jaipur City, Jaipur) wherein it was held that the status of the contesting parties was that of a licensor and licencee respectively. And following the revocation of the licence, the licencee had become a tress-passer. Sr. Counsel submitted that even otherwise, removed from the facts of the case the statement of law by the lower appellate court in its judgment dated 17.4.2003 with regard to the findings on title in a suit for permanent injunction as a rule never operating as res-judicata was erroneous. Reference has been made for the correct statement of law on the point to the judgment of the Hon'ble Supreme Court in the case of Sulochana Amma v. Narayanan Nair, AIR 1994 SC 152 wherein the Hon'ble Supreme Court held that 'in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in a suit between the parties. When the same issue is put in issue between same parties or their privies in a subsequent suit the decree in the earlier injunction suit equally operates as res-judicata. Sr. Counsel has however hastened to add that the issue of title was never in contest between the parties in the present proceedings at any time both in this earlier or subsequent suits. It was submitted that in this view of the matter the issue No.1 was as to whether the defendant was a licencee or a tenant in the "subsequent suit" was hit by res-judicata by findings on the same issue in the "earlier suit" (No. 177/1997 decided on 16.9.1998). It was submitted that in this view of the matter the issue No.1 was as to whether the defendant was a licencee or a tenant in the "subsequent suit" was hit by res-judicata by findings on the same issue in the "earlier suit" (No. 177/1997 decided on 16.9.1998). Thus the trial court in the "subsequent suit" relying upon earlier adjudication of the same issue between the same parties before a court of competent jurisdiction committed no error. 10. Sr. Counsel has also submitted that even otherwise in terms of the state of law as detailed in Order 41 Rules 23, 23A, 24 and 25 CPC remand is not to be resorted to as a matter of course but only if the statutory pre-conditions set out in the CPC for the purpose are made out. He submitted that the suit was not decided by the trial court in its judgment and decree dated 22.4.2002 upon a preliminary point nor the lower appellate court addressed the appeal on merits and found that the retrial was necessary on any issue taking into consideration additional evidence or made a limited remand on an additional issue on which no evidence was led. He submitted that in-fact in terms of Order 41, Rule 24 CPC, the lower appellate court ought to have exercised its power to finally determine the case on the question as to the status of the defendant's possession i.e as to whether he was a licencee or a tenant on the basis of evidence on record which was sufficient to enable it to pronounce judgment thereupon. It was finally submitted that it was thus incumbent upon the learned lower appellate court to decide the appeal on merits and not to circumvent its obligations to adjudicate as has been done in the present case. 11. Mr. Manu Bhargava, counsel appearing for the defendant- respondent has supported the judgment of the lower appellate court. 12. In my considered view, this appeal deserves to be allowed on more than one ground. The lower appellate court relied upon the Judgment of the Hon'ble Supreme Court in the case of Gram Panchayat of Village Naulakha (supra) which was wholly inapposite to the facts of the present case and the issue therein. 12. In my considered view, this appeal deserves to be allowed on more than one ground. The lower appellate court relied upon the Judgment of the Hon'ble Supreme Court in the case of Gram Panchayat of Village Naulakha (supra) which was wholly inapposite to the facts of the present case and the issue therein. Hence, the proposition of law with regard to determination of the issue of title in a suit for permanent injunction not being res-judicata was irrelevant and not applicable. No issue of title was even under consideration either in the earlier or subsequent suit. Aside of the aforesaid, the judgment in the case of Gram Panchayat of Village Naulakha (supra) turned on his own facts where a decree was obtained by resort to fraud. It is nobody's case that such a situation obtained in the present case. Section 11 CPC deals with res-judicata and broadly provides that where an issue had been settled and adjudicated between the same parties in an "earlier suit" in a court of competent jurisdiction it would be binding on the parties in a subsequent suit. Such a situation obtained in the context of the adjudication of the defendant's own "earlier suit" for permanent injunction before the court of learned Addl. Civil Judge (Jr.Div.) & Judicial Magistrate No.3, Jaipur. On specific pleadings and issue Nos. 2 and 4 framed thereon, the trial court concluded that the relationship between the contesting parties was that of licensor- licencee not landlord-tenant. And following the revocation of the licence the defendant in the "earlier suit" had become a tress-passer and the licensor was thus at liberty to take his proceedings in law for obtaining possession. It is an admitted fact that the judgment and decree dated 16.9.1998 passed by the learned Addl. Civil Judge (Jr. Div.) & Judicial Magistrate No.3, Jaipur City, Jaipur in the "earlier suit" was never put to challenge and attained finality. 13. In this view of the matter, it could have been nobody's case that same issue could at the instance of the defendant in the "subsequent suit" filed in the year 1997 before the learned Addl. Civil Judge (Jr. Div.) & Judicial Magistrate No.3, Jaipur City, Jaipur be re-agitated and was not hit by the res-judicata. 14. Consequently, in my considered opinion, the judgment and decree dated 17.4.2003 passed by the learned Addl. Civil Judge (Jr. Div.) & Judicial Magistrate No.3, Jaipur City, Jaipur be re-agitated and was not hit by the res-judicata. 14. Consequently, in my considered opinion, the judgment and decree dated 17.4.2003 passed by the learned Addl. District & Sessions Judge No.8, Jaipur City, Jaipur holding to the contrary is liable to be set aside. It is so directed. Regular appeal No. 24/2002 is restored on the register of the learned Addl. District & Sessions Judge No.8, Jaipur City, with directions that it be decided within six weeks of receipt of record on merits. 15. The Dy. Registrar (Judicial) is directed to remit the record of the case forthwith to the Court of learned Addl. District & Sessions Judge No.8, Jaipur City, Jaipur. The parties are directed to appear before the lower appellate court on 7.5.2014. Notice to counsel before this Court shall constitute notice to the parties before the lower appellate court.Appeal Allowed. *******