RANJANI BALA RAKSHIT Vs. BISWANATH RAKSHIT

JUDGEMENT

(1.) This revi-sional application is at the instance of the plaintiff of T. S. No. 18 of 1967 of the 3rd Court of learned Subordinate Judge at Howrah. The suit is for partition upon a declaration that a document purported to be executed by the plaintiff in favour of defendants 3, 4 and 5, dated the 29th July, 1955 is fraudulent, collusive and void and not binding on the plaintiff. The specific allegations in regard to that document, we shall come to hereafter in some details. The suit was decreed in a preliminary form by the Ld. trial Judge. Being aggrieved, defendants 3, 4 and 5 preferred an appeal, being Title Appeal No. 88 of 1978 of the 2nd Court of the Ld. Additional District Judge, Howrah. The Ld. appellate Judge, instead of entering into the merits of the appeal made an order of remand under Order 41 Rule 25 of the Code. He framed an additional issue as follows:-- "Is the suit so far as the Kha schedule property is concerned properly classified for valuation?" and remitted the suit to the Ld. trial Court for determination of the said issue with a direction to demand additional court-fees on such determination if necessary, with liberty to the plaintiff to suitably amend the prayer portion of the plaint.

(2.) In making the order for remand, the 3d. appellate Judge has practically decided the issue although he has also said that any observations made by him would not fetter the discretion of the trial Judge in coming to his own conclusions. He felt inclined to hold that the suit as framed should have been valued according to Section 7 (iv) (c) of the Court-fees Act but instead of saying so in so many words he left the question open for consideration by the trial Court to enable the plaintiff to amenl the plaint, if need be, so that the suit may not fail for want of a proper relief claimed therein.

(3.) Being aggrieved the plaintiff has moved this revisional application. The application has been heard on notice to defendants 3, 4 and 5 and on contest by them.