( 1 ) THIS Appeal has been preferred challenging the Order of Remand being Order No. 42 dated 22. 8. 1991 passed by the learned Illrd Court of assistant Judge, Howrah in T. A. No. 119 of 86, setting aside the judgment and decree passed by the learned Munsif in T. S. No. 105 of 85.

( 2 ) THE plaintiff made out a case in the plaint that the plaintiff is the owner of the Premises No. 24, Debendra Ganguly Road, P. S.-Shibpur and the defendant was a licencee under plaintiff with regard to a tea stall on the southern verandah particulars of which is described in the schedule to the plaint. Originally the defendant was a licencee under the plaintiff. At the time of talk of purchase the suit property, this defendant allegedly assured the plaintiff to remove the business from the suit stall. According to the plaintiff-she purchased the suit holding on 27. 5. 1981 and on the request of the defendant the plaintiff allowed the defendant two months time i. e. to remain there as a licencee for two months.

( 3 ) ACCORDING to the plaintiff, the defendant did not vacate the suit premises within these two months inspite of repeated requests. The plaintiff thereafter sent notice by Registered Post with Acknowledgment Due directing the defendant to quit and vacate the suit property i. e. the tea stall within 15 days from the receipt thereof. But nothing developed and accordingly plaintiff filed this suit.

( 4 ) THE defendant contested the suit by filing written statement denying all material facts as made out in the plaint stating inter alia that the suit is not maintainable and he was never a licencee under the plaintiff. The defendant also alleged that he is a premises tenant under one Santi Prasad banerjee, the vendor of the plaintiff. He occupies the suit room as a tenant at a monthly rental of Rs. 10/- and he regularly paid to the Manager of the estate of Sri Santi Prasad Banerjee, there is no cause of action for the suit and he prays for dismissal of the suit.

( 5 ) THE plaintiff by way of amendment of the plaint incorporated that the defendant started a small business in a wooden Goomti as a licencee sometime in early part of 1978, during the calamities before puja vacation of 1978. On consideration of these allegations and counter allegations made out in the plaint and written statement the following issues were framed.

1) Is the suit maintainable in its present form ? 2) Is the notice duly served upon the defendant ? If so, is the same legal, valid and sufficient ? 3) Is the defendant, a licencee under the plaintiff ? 4) Is the plaintiff entitled to get a decree, as prayed for ? 5) To what other relief, if any, the plaintiff is entitled ?

( 6 ) THE learned Munsif dismissed the suit on contest with costs.

( 7 ) THE plaintiff preferred appeal. In the appellate Court the plaintiff filed two applications, one for amendment of the original plaint and the other under Order 41 Rule 27 of the Code of Civil Procedure for adducing additional evidence consequent to the supposed allowance of the earlier petition for amendment of the plaint.

( 8 ) THE defendant vehemently contested these two applications.

( 9 ) THE learned first appellate Court after hearing the learned counsel for the parties, set aside the order of the learned Munsif in T. S. No. 105 of 85, and allowed the appeal on contest with costs.

( 10 ) THE learned first appellate Court sent back the suit on remand for fresh trial in the light of the observations made in the said Order No. 42 of 22. 8. 1991.

( 11 ) THE learned Counsel for the appellant submitted that the learned appellate Court below passed a wrong Order by sending the matter on remand when all the issues have been decided by the learned Munsif.

( 12 ) THE learned Counsel for the appellant in this regard relied on a single Bench decision of this High Court reported in (1996)2 Cal LJ 541 (Surendra Nath Roy v. Gobinda Chandra Dutta and Ors. ).

( 13 ) IN this judgment the learned single Judge of this High Court held t

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