- (1.) THIS miscellaneous appeal has been filed against the Judgment dated 31.03.2010, passed by Additional Judicial Commissioner, F.T.C. - X, Ranchi in connection with Title Appeal No. 120/2007 whereby learned Additional Judicial Commissioner has been pleased to set aside Judgment dated 21.06.2007, Decree signed on 27.06.2007 relating to Title Suit No. 71/2001, passed by 1st Additional Munsif, Ranchi and remanded the case for retrial.
(2.) THE appellant has assailed the impugned Judgment on the ground that order of remand for retrial is highly erroneous and illegal and not sustainable in law. The learned appellate court has directed the trial court to recast the issues and give opportunity to the defendant no. 1 to adduce evidence though the defendant no. 1 had been debarred from filing written statement by order dated 29.11.2002, passed by the Trial Court. Thereafter, W.P.(C) No. 5051 of 2005 was preferred challenging the said order but the defendant no. 1 did not get favourable order and said writ petition stood dismissed.
(3.) IT is contended since defendant no. 1 has been debarred from filing written statement then question of adducing evidence does not arise at all and the learned appellate court has erred in passing such order by which the defendant no. 1 has been allowed to adduce evidence. It is further submitted that the learned additional Judicial Commissioner should have distinguished the Judgment [Shyam Murmu Vs. Raska Tudu, 2007 1 JCR 454] from the Judgment [Dayanand Bhadani Vs. Prabhat Kumari Bhadani, 2008 3 JCR 258] considering the facts of the case in hand and the former Judgment i.e. Shyam Murmu ought to have been relied upon. The appellant has further relied on the Judgment [Modula India Vs. Kamakshya Singh Deo, 1988 4 SCC 619]. On the other hand counsel appearing for the respondents has submitted that learned Additional Judicial Commissioner has rightly remanded the case for retrial because issues were not properly framed. The defendant no. 1 was debarred from filing written statement and, therefore, he was not expected to make out any case in his favour and, therefore, issue nos. 5 and 6 have wrongly been framed. The learned Appellate Court has elaborately discussed the Judgment in the case of Dayanand Bhadani in which all relevant Judgments including Judgment in the case of Modula India relating to issues involved in this case, has been discussed by His Lordship. There is no merit in this appeal and therefore, the same is liable to be dismissed.;