JUDGMENT :

1. This Appeal is filed by the defendant no.2/appellant questioning the legality and propriety of the Judgment of remand dated 25.09.2017 passed in Title Appeal Case No.04/2015 by the learned District Judge, Special Division–I, East Sikkim at Gangtok arising out of the Judgment dated 24.07.2015 passed against the plaintiff/respondent in Title Suit No.39/2014 by the Court of Civil Judge, East Sikkim at Gangtok dismissing the suit.

2. The plaintiff filed the suit seeking declaration that she is the daughter of Late Gyanson Rai @ Sonam Topden Bhutia inter alia pleading that her father joined British army in the year 1966. The people from Bhutia community were not recruited in British Army, therefore, he changed his name as Gyanson Rai in place of Sonam Topden Bhutia and joined the British Army. The said change of name was only to secure job in British army. Later he married with Ms. Rupa Rai nee Thakuri in 1976-77. Out of the said wedlock plaintiff was borne at Hongkong in the year 1977.

3. The plaintiff’s father, after spending almost 20 years in service at Hongkong came to Kurseong on retirement and started living there. Again after sometime he could get the job at Bahrain. Later he came to Gangtok and stayed at Zigmee Building, old children Park, Gangtok. The real identity of Gyanson Rai @ Sonam Topden Bhutia came to the knowledge of the plaintiff after coming back of him from Bahrain. In 2014 plaintiff’s father died and his last rituals were performed as per the traditions of the Bhutia community.

4. In the said backdrop and pleading, the suit has been filed seeking declaration that the plaintiff is the daughter of Gyanson Rai @ Sonam Topden Bhutia. In the suit no one appears as defendant-despite publication of notice. The said suit was dismissed by Learned Trial Court. On filing an appeal the lower appellate Court by the impugned judgment remitted the matter back to the Trial Court because Jigmee P. Bhutia (defendant no.2/appellant) and the daughter of plaintiff’s father were found necessary party to the suit. The Appellate court observed their presence is necessary for effective and complete adjudication and to settle the issue involved in the suit. However, with the help of proviso of Section 99 and under Order 41 Rule 23A of the CPC by setting aside the impugned judgment and decree of the Trial Court remitted the matter back restoring the suit to its original number. The plaintiff is also allowed to amend the pleadings to the extent required and to decide the suit in accordance with law.

5. Learned Counsel for the appellant has argued with vehemence and submitted that the judgment of remand passed by learned Lower Appellate Court is contrary to the spirit of the provisions of Order 41 Rule 23 A of the CPC, without reversing the findings recorded by the Trial Court. It is argued as per Section 99 of CPC, on account of misjoinder or non-joinder of the parties reversing or modifying the decree for error or illegality not affecting the merit and jurisdiction is not permissible. It is further argued the lower Appellate Court while pronouncing the judgment granted liberty to the plaintiff to amend the pleadings without affording opportunity of rebuttal. However, after remand such an observation prejudices the defendant/appellant, therefore, the judgment of remand passed by the learned Lower Appellate Court is illegal and contrary to the settled law, which, may be set aside. In support of his contention reliance has been placed on the judgment of P. Purushottam Reddy and Ors vs. Pratap Steel Ltd., reported in AIR 2002 SC 771. The reliance has further been placed on the judgment of Ashwinkumar K. Patel vs. Upendra J. Patel & Ors., reported in AIR 1999 SC 1125. In addition further reliance has been placed on Promotha Nath Mazumdar vs. Nagendra Nath Mazumdar, reported in MANU/WB/0472/1929; Pasupuleti Venkateswarlu vs. The Motor & General Traders, reported AIR 1975 SC 1409, R.K Tombi vs. R.K Maipaksana Singh & ors., reported i