Prasenjit Mandal, J. - (1.) THIS application is at the instance of the defendant no.1(ka) and is directed against the order no.174 dated March 3, 2009 passed by the learned Judge (Junior Division), Second Court, Bolpur, District - Birbhum in Title Suit No.38 of 1989 thereby rejecting the petition dated February 19, 2009 filed by him.
(2.) THE short fact is that in an appeal arising out of the said title suit, the petitioner/appellant filed a petition under Order 41 Rule 27 of the C.P.C. in the said title appeal being Title Appeal No.17 of 1998. That application was filed for marking a certain Deed of Sale dated April 25, 1999 as exhibit. That application under Order 41 Rule 27 of the C.P.C. was rejected, but, the suit was remanded back directing the parties to adduce evidence. THEreafter, the petitioner filed the said petition dated February 19, 2009 for marking the Deed of Sale as exhibit, which was rejected by the impugned order. Being aggrieved, this application has been filed. The short question in the matter is that whether the learned Trial Judge was justified in rejecting the petition dated February 19, 2009 thereby not accepting the said Deed of Sale into evidence. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the title appeal being Title Appeal No.17 of 1998 arising out the said suit was allowed on contest directing the learned Trial Court for fresh trial in the light of the observations made in the body of the judgment. By the impugned judgment, the learned Trial Judge has observed that the suit should be sent back on remand for fresh trial after giving an opportunity to the plaintiff for amendment of his plaint and also an opportunity to the defendant to file an additional written statement, if any. Thus, on perusal of the said judgment of the learned appellate Court appearing as annexure 'B', I find that the remand of the suit was an open one and there was no restriction at all. There is no mention that the order of remand has been passed limiting the points to be decided after remand. An open remand was made by the order of the learned Appellate Court. Thereafter, the parties were given opportunities to amend their pleadings and to adduce evidence thereon. Though at the time of disposal of the appeal, the application under Order 41 Rule 27 of the C.P.C. was rejected, opportunities were given to the parties to adduce evidence. Moreover, the merit of a deed cannot be considered in the manner as discussed in the impugned order. The merit of the deed shall be considered at the time of disposal of the suit. This being the position, I am of the view that the impugned order cannot be sustained. The learned Trial Judge has failed to exercise the jurisdiction vested in him. The application is, therefore, allowed. The impugned order is hereby set aside.
(3.) THE petition dated February 19, 2009 filed by the defendant no.1(ka) stands allowed. THE learned Trial Judge shall proceed with the suit from that stage and he shall dispose of the suit within two months from the date of communication of this order. Considering the circumstances, there will be no order as to costs.;