JUDGMENT
Subhro Kamal Mukherjee, J.
1. This is an appeal against an order of remand.
2. This case has a chequered history. Certain facts are necessary to appreciate the points involved in this appeal.
3. The plaintiff on or about September 24, 1980 instituted this suit for declaration, partition, recovery of possession and mesne profits.
4. By judgment and decree dated February 5, 1997 the learned Civil Judge, (Senior Division) at Port Blair, decreed the said suit on contest, inter alia, for partition with separate possession in preliminary form against the contesting defendant No. 1 and ex parte against the rest.
5. The defendant No. 1 preferred Title Appeal No. 02 of 1997. By judgment and decree dated March 30,1999 the learned District Judge at Port Blair allowed the said appeal and sent back the suit to the Trial Court on remand for the purpose of retrial.
6. The Trial Court by judgment and decree dated October 25, 2000 again decreed the suit for partition and separate possession in preliminary form. The learned Trial Judge, however, noted in his judgment that despite opportunity, the defendant No. 1 did not adduce any evidence in support of his allegation that he had incurred expenditure for improvement, development or construction in respect of the suit premises. The learned Trial Judge recorded that there was no supportive evidence that the defendant No. 1 had contributed to the common fund.
7. The defendant No. 1 preferred Title Appeal No. 5 of 2000 in the Court of the learned District Judge at Port Blair. The defendant No. 1, in connection with the said title appeal, filed an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of his written statement. By filing such application for amendment of the written statement, the defendant No. 1, inter alia, wanted to deliver a counter-claim against the plaintiff and other defendants for declaration of his exclusive title to the suit property by adverse possession. The learned District Judge by order No. 21 dated March 19, 2002 allowed the said application for amendment of the written statement filed by the defendant No. 1.
8. The present appellant filed an application under Section 115 of the Code of Civil Procedure against the said order of the learned District Judge allowing the application for amendment of the written statement. Subsequently, however, the said application was converted into application under Article 227 of the Constitution of India. Jayanta Kumar Biswas, J. by order dated June 17, 2003, inter alia, permitted the present appellant to withdraw her said revisional application with liberty to her to agitate the validity and legality of the order allowing the said application for amendment of the written statement before the higher appellate forum, if occasion arose for the same.
9. The learned District Judge by the present order of remand allowed the said appeal and set aside the judgment and decree passed by the learned Civil Judge, (Senior Division) at Port Blair and sent back the suit on remand to the Court below with opportunities to both the parties to adduce further evidence.
10. Being aggrieved the plaintiff has come up with this appeal against the said order of remand.
11. Mrs. Anjili Nag, learned Advocate, appearing in support of the appeal, submits that the learned Judge in the lower Appellate Court substantially erred in law in allowing the application for amendment of the written statement at the belated stage filed by the defendant No. 1 and the learned Judge substantially erred in law accepting the submission of the learned Advocate appearing for the defendant No. 1 that necessary chances should be given to the defendant No. 1 to adduce his evidence, if any, in support of his amended written statement.
12. Mr. Haradhan Banerjee, learned Advocate, appearing for the defendant No. 1 submits that this is a simple order of remand and as such it is not open to the appellant to assail the order passed by the learned District Judge allowing the application for amendment of the written statement, Mr. Banerjee in support of his contentions cites the decision of the Supreme Court of India in Narayanan v. Kumaran and Ors., reported in 2004 (4) SCC 26. Mr. Banerjee submits that the learned Judge in the lower Appellate Court committed no mistake in passing the impugned order of remand to enable the parties to adduce further evidence in the context of the amended written statement.
13. After hearing the learned Advocates appearing for the parties, in my view, this appeal involves following substantial questions of law:
(i) Whether the learned Judge in the lower Appellate Court substantially erred in law in allowing the application for amendment of the written statement filed by the defendant No. 1?
(ii) Whether the learned Judge in the lower Appellate Court substantially erred in law in passing the impugned order of remand only for the purpose of adducing evidence by the parties in the Court below?
14. Supreme Court of India in Narayanan(supra) observes that under Order 43 Rule (1)(u) of the Code of Civil Procedure an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the Appellate Court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is weather, in the circumstances, an appeal would lie if the order of remand were to be treated as a decree and not a mere order. The appellant in an appeal under Order 43 Rule 1(u) of the Code of Civil Procedure is not entitled to agitate questions of facts. I am unable to accept the contention of Mr. Banerjee that the Supreme Court of India held in the aforesaid decision, that in an appeal against the order of remand, it is not possible for the appellant to challenge the order allowing application for amendment of the written statement filed by the defendant No. 1, which ultimately led to the passing of the order of remand. Moreover, in view of the order of Jayanta Kumar Biswas, J. in Civil Revision Case No. 6 of 2002, which is a decision inter parties, it is not possible to prevent the appellant from challenging the said order of the learned District Judge allowing the said application for amendment of the written statement before this Court inasmuch as liberty was granted to this appellant to question the validity and legality of the said order allowing the application for written, if occasion arose for the same before the higher appellate forum.
15. On merits, I am satisfied that the application for amendment of the written statement was filed by the defendant No. 1 at the belated stage just to delay the disposal of the lis. After the first order of remand was passed opportunities were granted by the Trial Court to the defendant No. 1 to adduce evidence in support of his claim that he had incurred expenditure for improvement, development or construction of the suit premises, but he did not adduce any evidence nor he could prove that he had contributed to the common fund for acquiring and improving the suit premises. In the application for an amendment of the written statement no explanation was offered as to why the counter-claim could not be filed by the defendant No. 1 when he himself admitted in the application for amendment that he intended to claim exclusive title in respect of the suit property by making an alternative case of ouster and by way of adverse position. The only explanation that was offered for filing of the application for amendment of the written statement was that such prayers could not be made “due to inadvertence and/or omission and/or mistake at the time of drafting the written statement”.
16. It is settled law that the defendant can be allowed to amend his written statement to raise an additional ground, but if the trial of the suit has to be reopened afresh as a result of such amendment, it should not be allowed. Normally no amendment should be allowed in appeals which raise fresh factual questions.
17. In my view the learned District Judge substantially erred in law in allowing the application for amendment of the written statement at this late stage, which was filed by the defendant No. 1 with the mala fide intention to drag the proceeding.
18. The learned District Judge passed the order of remand only because the learned Advocate appearing for the defendant No. 1 submitted before him that necessary chances should be given to his client to adduce his evidence, if any, in support of an amended written statement.
19. I am not impressed by the reasons given by the lower Appellate Court for remanding the matter to the learned Trial Judge. Power of remand is vested in the Appellate Court under Rules 23, 23A and 25 of the Order 41 of the Code of Civil Procedure. In the case in hand, undisputedly Rule 23 is not applicable, as the learned Trial Judge has not decided the suit on a preliminary issue. The considerations would have been different if remand would have been directed under Rule 25 as under Rule 25 the appeal shall be kept pending and an issue is sent back on remand to the learned Trial Judge for taking additional evidence required and for returning the evidence to the Appellate Court together with the findings thereon and the reasons therefor. This is, however, a case of open remand under Order 41, Rule 23A of the Code of Civil Procedure. In my view Order 41 Rule 23A of the Code of Civil Procedure should be sparingly used as it is the public policy that a litigation is to be concluded finally as early as possible. Where, of course, remand is felt necessary after judicial consideration and when Rule 25 of Order 41 of the Code of Civil Procedure is not considered to be adequate, the Appellate Court may consider the question of an open remand.
20. The learned Trial Judge has considered the entire evidence and decreed the suit with findings on the evidence already on record. In such a case it is the public duty of the Appellate Court to consider the matter as it stands and to give its own findings. The Appellate Courts should strictly comply with the provisions of Order 41 Rule 27 of the Code of Civil Procedure.
21. I, therefore, allow the appeal. The order allowing the application for amendment of the written statement is set aside. The application for amendment of written statement filed by the defendant No. 1 is rejected. The order of remand passed by the lower Appellate Court is set aside. Title Appeal No. 5 of 2000 is sent back to the lower Appellate Court for disposal of the appeal on merits on the basis of the materials on record as expeditiously as possible, preferably within two months from the date of receipt of the Lower Courts’ Records by him.
22.1 make no order as to costs.
23. Drawing up of formal decrees is dispensed with.
24. Let the Lower Courts’s Records along with a copy of this judgment be sent to the lower Appellate Court forthwith.