BISWANATH DIGAR Vs. GOPAL DIGAR

JUDGEMENT

(1.) This revisional petition by the defendants, is directed against the order dated June 22, 1991 passed by the Additional Munsif. Ghatal, District Midnapur in Title Suit No. 46 of 1988, whereby their prayer for permission to adduce fresh evidence after remand of the suit was rejected. To be more specific, after the aforesaid suit was remanded by the appellate court to the trial court, the defendants-petitioners filed an application for inspection of the LTIs. said to have been given by the defendant O.P. No. 6 on summons/ Wakalatnama/ written statement with regard to an earlier snit being Title Suit No. 255 of 1970 as also to the subsequent one being Title Suit No. 46 of 1988 by a Finger Print/Hand writing Expert and for a report as such.

(2.) The factual score depicts that a Title Suit No. 46 of 1988, being one for declaration of Title and injunction was filed by the plaintiffs-O.P. Nos. 1 to 5 and the same was earlier dismissed on contest against the defendants-petitioners No. 1 to 5 and exparte against the defendants-O.P. No,. 6 and 7 by the judgment dated 18.5.1989. The plaintiffs-O.Ps. thereafter preferred an appeal being Title Appeal No. 47 of 1989 in the court of the Assistant District Judge, Ghatal. The appeal was however, allowed by the judgment dated 24.3.1990 of the Assistant District Judge, Ghatal, whereby the judgment of the trial court was set aside with a direction that an opportunity to the plaintiffs be given to amend the plaint and, thereupon, to give a judgment afresh. Such order of remand by the appellate court was subjected to a condition that no fresh evidence apart from the amended pleadings should be allowed by the trial court. The defendants-petitioners, thereupon, filed a petition before the trial court for obtaining report of an Hand-writing/Finger Print Expert with regard to the L.T.I. of the defendant O.P No. 6 as already referred to above. Obviously, the prayer as such made before the trial court was for adducing evidence afresh on behalf of the contending defendant i.e. the petitioners after the suit was remanded by the appellate court.

(3.) Learned counsel appearing on behalf of the petitioners urged that the order of remand by the appellate court would be deemed to have been passed under Order 41 Rule 23A of the Code of Civil Procedure and, accordingly, it was an open remand with entitlement to the defendants to adduce fresh evidence as referred to above. On the other side, the counsel for the O.P.,s urged that since no appeal had been preferred by the defendants-petitioners against the order of the remand, they would be precluded from disputing its correctness as provided under section 105(2) of the Code of Civil Procedure.