IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.296 of 2006 NALISH SINGH & ANR Versus POLICE SINGH @ POLICE YADAV ----------- 15 29.9.2008 Heard Counsel for the petitioners. No one appears on behalf of the opposite parties. In the opinion of this Court, the impugned order refusing to consider the prayer of the petitioners for allowing him to adduce certain evidence including seeking opinion of the disputed thumb impression cannot be sustained on account of the reasonings given by the Trial Court. The Court below has proceeded that the Appellate Court had remanded the issue as if only on the question of abatement of the suit on account of the judgment and decree passed against the dead person. That however, was not the purport of the judgment of the Lower Appellate Court remanding the suit for re-hearing as would be evident from the judgment dated 9.12.2003, which in concluding paragraph has recorded as follows:- “------- In the eye of law a judgment and decree passed against a dead person in nullity, so instead of going into other merits of this case I set aside the impugned judgment and decree being a nullity and remand this suit back to the learned court below to pass order on petition of the appellants dated 23.8.85 after substitution, if any, and thereafter pass the judgment in accordance with law.” That being so, it was a case of clear and open remand instead of remand on a specific issue which have to be distinguished in terms of an order 41 Rule 23 read with Order 41 Rule 23(A) of the Code of 2 Civil Procedure. Accordingly, the whole approach of the Court below appears to be apparently based on an apparent jurisdictional error. This order however should not be taken to be an authority to mean that this Court has expressed any opinion on the plea of the petitioner with regard to leading of evidence afresh and in fact, it would be open for the Court to examine such plea on merits. All that was required to be done therefore, in a situation like this where the Appellate Court had sent the matter on an open remand is that it had to only find out as to whether the petitioners were precluded on the earlier occasion in leading certain evidence which they wanted to bring on record. That aspect having been not examined and the matter being decided rather cursorily, this Court can not sustain the impugned order and accordingly, the same is set aside and the whole matter is now sent back for reconsideration in accordance with law. With the aforementioned observations and directions this Civil Revision Application is allowed to the aforementioned extent. Rsh (Mihir Kumar Jha, J.)