HARISH TANDON,J. - (1.) The point emerged in this revisional application is as to whether the Trial Court was justified in rejecting an application for amendment after remand. According to the petitioner, the Appellate Court remanded the matter after framing two additional issues and remitted the matter back to the Trial Court to determine the said issues along with the other issues already framed after giving an opportunity to the parties to adduce evidence on the additional issue so framed and to decide the suit afresh and, therefore, it was not an open remand but the limited one. The challenge is basically founded on the submission that the Court cannot enlarge the scope of remand by allowing a party to amend the pleading. Before proceeding to deal with the points as indicated above, it would be necessary to narrate the salient facts of the case. The plaintiff/opposite party filed a title suit no. 141 of 2003 before the learned Civil Judge (Junior Division), 2nd Court, Purulia praying, inter alia, a decree for declaration that the plaintiffs have the permanent raiyati right over the suit property described in the second Schedule to the plaint and permanent injunction restraining the defendants/petitioners from disturbing and/or interfering with the peaceful possession of the plaintiff/opposite party. It is averred in the plaint that one Mukunda Mandal was a raiyat in respect of the property described in the first Schedule which would be corroborated from the fact that his name was recorded in R.S. Record of Rights. The said owner died living behind the four sons who inherited the said property in equal shares. The disputes cropped up amongst the four sons who ultimately decided to make an amicable partition of the said property by executing a document on 26.04.1990. After the execution of the said document, the aforesaid four sons had been enjoying and possessing their respective allotments made thereunder to the exclusion of the others. Some of the sons sold, transferred and conveyed their allotted portion to several defendants who later on possessed the same independently and on their own right. It is alleged in the plaint that the defendants are trying to take forcible possession of the allotted portion of the plaintiffs and further threatened to make a construction thereupon.
(2.) The Trial Court framed as many as seven issues which are as follows: (1) Is the suit maintainable in its present form and law? (2) Is there any cause of action to file this suit? (3) Is the suit barred by limitation? (4) Is the suit bad for defect of parties? (5) Has the plaintiff any right, title, interest and possession over the suit property? (6) Is the plaintiff entitled to get decree as prayed for? (7) To what other relief or relief if any is the plaintiff entitled to get decree - It appears that the Trial Court took up the first issue normally the issue relating to the maintainability of the suit in present form and law and held that the alleged deed of partition is nothing but a mutual arrangement entered into by and between the four brothers and, therefore, the property remained joint property of the four brothers. The Trial Court proceeded to dismiss the suit on the said issue leaving the other issues unanswered as the Trial Court found that the decision in the said issue is sufficient to negative the reliefs claimed in the plaint.
(3.) The judgment and decree of the Trial Court was carried to an Appellate Court in a regular first appeal. The Appellate Court held that without answering the other issues, the Trial Court erred in dismissing the suit on the first issue which is impermissible in view of the provision contained under Order 14 Rule 2 of the Code. While discussing the merit, the Appellate Court thought it fit that two additional issues are required to be answered in the said suit and framed the same and remitted the matter to the Trial Court for fresh consideration. It would be relevant to quote the concluding portion of the order of the Appellate Court for the purpose of addressing the issue raised before this Court which runs thus: ORDERED That the Title No. 53/09 is allowed on contest. The judgement and decree dated 10th day of July, 2010 passed by Mr. Indranil Chatterjee, Ld. Civil Judge (Jr. Division), Purulia in Title Suit No. 141/03 are hereby set aside. The case be sent back on remand with a direction to frame additional issues on the basis of the discussion made in this judgement and to determine the other issues which are already framed. The trial court shall also give the parties reasonable opportunity to adduce evidence on the additional issues so framed and to decide the suit afresh. But there shall be no unnecessary adjournment in this regard. There shall be no order as to cost." According to Mr. Asis Sanyal, learned Advocate for the petitioner it is not an open remand but the limited one in as much as the Trial Court after framing two additional issues permitted the parties to adduce evidence thereupon. He further submits that since the other issues were not decided by the Trial Court, the Appellate Court directed those issues to be answered a fresh which does not mean that it is an open remand. He further submits that the Trial Court cannot enlarge the scope of the remand if it is a limited one by permitting the parties to amend the pleading. Lastly he submits that the proposed amendment shall alter the nature and the structure of the suit and will invite the parties to adduce fresh evidence in support thereof which is contrary to the intention of the Appellate Court and the directions made in the remand order. Despite service, there is no appearance on behalf of the plaintiffs/opposite parties. ;