An appellate court cannot remand a suit to the trial court without following the procedures prescribed in the Civil Procedure Code.

1. The instant Second Miscellaneous Appeal has been preferred on behalf of the appellant defendant No.1 against the order of remand dated 28.11.77 passed by the learned Additional District Judge, 10th Court. Alipore thereby reversing the judgment and decree dated 22.9.76 passed by the learned Munsif, First Additional Court at Alipore in T.S. No. 72 of 1976. It may be noted that initially the said suit was filed before the Court of the 5th Munsif at Alipore being numbered as T.S. No. 230 of 1973.

2. The admitted facts are as follows:- The present appellant brought T.S. No. 33 of 1970 in the First Court of Munsif, Alipore against the pro-defendant-respondent No.4 Jiban Krishna Dutta in respect of the suit premises and obtained an ejectment decree which was confirmed by the First Appeal Court and the Second Appeal preferred by him before this High Court was summarily rejected. After the execution case was started in respect of the decree obtained by the present appellant the said T.S. No.230 of 1973=T.S. No. 72 of 1976 was filed by the plaintiff-respondents Nos. 1 to 3 with a prayer for a declaration that the said decree was not binding upon them and for permanent injunction. It is their case that the said Jiban Krishna Dutta took the tenancy on behalf of the joint family business of the plaintiff-respondents Nos.1 to 3 and the pro respondents Nos. 4 to 5, being the karta of the family. It was further alleged that the tenancy was taken for manufacturing purpose and that the ejectment decree was obtained by the defendant-appellant in collusion with the proforma defendant respondent Jiban Krishna Dutta. The Trial Court after considering the evidence on record decided the issues 2 to 5 against the plaintiff-respondents Nos.1 to 3 and dismissed the suit. The learned Munsif has found that the entire tenancy in respect of the suit premises was the exclusive tenancy of pro-defendant-respondent No.4 Jiban Krishna Dutta against whom the present appellant-defendant No.1 got a decree of eviction in T.S. No. 33 of 1970 which was confirmed upto Second Appeal. The learned Munsif in his judgment dated 22.9.76 has found that the said Jiban Krishna Dutta was the sole tenant under the present appellant. He has also negatived the plaintiff-respondents case that they had a joint family business in the suit premises and that pro-defendant-respondent No.4 i.e. Jiban Krishna Dutta was managing the same on behalf of all. The learned Munsif after considering all the evidence adduced by the plaintiff-respondents has disbelieved the story of joint family business. The learned Munsif has also come to a finding that there is a reasonable ground for believing that the suit has been instituted to avoid eviction of the said pro-respondent No.4 Jiban Krishna Dutta. It appears from the judgment of the learned Munsif that it was contended before him on behalf of the plaintiff-respondents that the tenancy was for manufacturing purpose and therefore, six months notice was required to terminate the tenancy. But, the learned Munsif has observed, and in my view has rightly observed, that the point was already decided in T.S. No.33 of 1970 which was confirmed by the two Appeal Courts and that as such this point could not be reagitated before him, under standably being by the principles and Respondent judicata. The plaintiff respondent preferred appeal against said judgment and decree of dismissal passed by the learned Munsif and the learned Appeal Court by its impugned order dated 28.11.77 in Title Appeal No.35 of 1976 allowed an application under Order 41 Rule 27 filed by the plaintiff (the respondents Nos.1 to 3 in the instant appeal) and remanded the suit to the Trial Court for framing an issue to the effect whether the tenancy was for manufacturing purposes or not and to decide the suit afresh. The learned First Appeal Court allowed the Appeal but did not set aside the judgment and decree passed by the Trial Court he was, however, kind to observe as follows