A remand order that grants an opportunity to the defendants to file written statements and adduce evidence should be treated as an open remand under Order 41 Rule 23 of the Code of Civil Procedure, and the suit loses its character of ex parte hearing and becomes a contested one.

Prasenjit Mandal, J.

1. THIS application is at the instance of the plaintiff and is directed against the order dated December 22, 2009 passed by the learned Civil Judge (Senior Division), Fourth Court, Alipore, District South 24 Parganas in Title Suit No.92 of 2002 thereby passing certain observations, framing of issues and lastly fixing the next date on January 13, 2010 for discovery and peremptory hearing.

2. THE short fact is that the plaintiff filed the Title Suit No.92 of 2002 praying for a decree for declaration that the deed of trust dated August 13, 1947 executed by Bimal Behari Sen (since deceased) is still continuing, a decree declaring that the purported deeds of sale dated March 17, 1998, March 18, 1998 and March 19, 1998 executed by the defendant nos.1, 2 and 3 in favour of the defendant no.4 are illegal, invalid, void and ab initio, a decree for declaring that the plaintiff is entitled to decree for possession, a decree for permanent injunction and other reliefs.

In that suit, the defendant/opposite party no.4 entered in the suit long ago. But he did not contest the suit ultimately. None of the defendants also contested the suit and the learned Trial Judge decreed the suit ex parte partially. Being aggrieved by the said order of partial decree, the plaintiff/petitioner preferred an appeal being Title Appeal No.91 of 2007. In that appeal, the plaintiff/petitioner filed an application for amendment of the plaint. The learned appellate Court sent back the case to the learned Trial Court to consider the prayer for amendment. The learned appellate court also directed the learned Trial Court to give an opportunity to the appellant/plaintiff to offer evidence in this regard, of course, after service of notice to the defendants of the suit and then to write a fresh judgment in the light of amended plaint, if any, and send the same to the court for final disposal of the appeal. Accordingly, the plaintiff/petitioner filed an application for amendment of the plaint which was granted by the learned Trial Court. As per order of the learned appellate court, the learned Trial Judge issued notice upon the defendants. Thereafter, the defendant nos.1 and 4 entered appearance on August 5, 2009 together with a show-cause and the written statement. The written statement filed by the defendant nos.1 and 4 was accepted by the Court. Thereafter, the defendant no.3 entered appearance on August 28, 2009 along with a show-cause and a written statement. Such a written statement filed by the defendant no.3 was also accepted. Thereafter, the learned Trial Judge framed issues on the basis of the pleadings of the parties and directed the parties to make discovery, if any, and fixed the next date for peremptory hearing on January 13, 2010 by the impugned order. Being aggrieved, the plaintiff/petitioner has preferred this application.

3. MR. Bhattacharyya, learned Advocate appearing on behalf of the petitioner, submits that the learned appellate court passed the order of limited remand under Order 41 Rule 25 of the Code of Civil Procedure and it was not an open remand at all. But the learned Trial Judge has dealt with the matter as if it was an open remand by accepting the written statement filed by the opposite parties. He has framed issues on the basis of the pleadings of the parties. In fact, the defendants/opposite parties did not file any written statement earlier. So, the written statements filed by the opposite parties subsequently should not be taken into consideration. He has also submitted that since the learned appellate court has retained the appeal, the order of remand is limited one under Order 41 Rule 25 of the C.P.C. Lastly, he has submitted that if the written statement is to be accepted, it must be limited to the remanded portion of the plaint and not beyond that. Thus, he has submitted that the order impugned should be set aside.

4. ON the other hand, Mr. Kundu, learned Advocate appearing on behalf of the opposite party