CRP 65/2011 BEFORE THE HON’BLE MR. JUSTICE A.C. UPADHYAY JUDGMENT AND ORDER (ORAL) 1. I have heard Mr. T.C. Khatri, learned senior counsel assisted by Mr. L.R . Mazumdar, learned counsel for the petitioner and Mr. P. Roy, learned counsel f or the respondent. 2. This revision petition is filed by the petitioner against the order date d 10.11.2010 passed by the learned trial Court rejecting the prayer filed by the petitioner for impleading Sri Jayanta Kumar Ghosh and Shri William Zaidi as the defendants in the Title Suit. 3. The plaintiff-petitioner filed Title Suit No.302/2006 against the defend ants, praying for declaration of the Maliki rights, title and interest over the suit land mentioned in the suit Schedule of the plaint and also for khas possess ion of the suit land, by evicting the defendants and/or any person or persons cl aiming though them, by removing all structures, constructions, obstructions and for also permanent injunction against the defendants. 4. On conclusion of the hearing, the suit was decreed by the trial Court in favour of the plaintiff. An appeal was preferred by the defendants against the judgment and decree passed by the trial Court, which was numbered as Title Appea l No.09/08. The appellate court vide its judgment dated 14.7.2009 in T.A. No.09/ 08, set aside the judgment and decree passed by the Trial Court and remanded the matter for fresh adjudication by framing additional issues. The Appellate Court observed that Sri Jayanta Kr. Ghosh and Sri William Zaidi, being the co-sharers of the suit patta and suit dags, were the necessary parties in the suit and, ac cordingly, directed to frame additional issues and also to give opportunity to t he parties to adduce further evidence. 5. In view of the above direction of the appellate Court, the suit was rema nded to the trial Court for a fresh trial after framing the issues above noted, in-accordance with law. 6. In the trial Court, the plaintiff-petitioner filed a prayer seeking amen dment of the plaint by incorporating the names of Sri Jayanta Kr. Ghosh and Sri William Zaidi as defendants. The prayer so made by the petitioner was rejected b y the trial Court by passing the following order - Petitioner is represented O.P. is absent. The petitioner filed this petition to the implead Jayanta Kr. Ghosh and William Ziadi as Hon’ble Appellate Court while remanding the case held that these person s are necessary parties. Hence petitioner filed this petition. I perused the judgment and order of Hon’ble Appellate Court. Hon’ble Appellate C ourt in his judgment held that William Ziadi of Jayanta Kr. Ghosh and other Co-s harer of the suit patta were necessary parties in the suit. Hon’ble Appellate Court also opined that this Court ought to frame issue in this regard. Accordingly, Hon’ble Appellate Court remanded the suit with direction t o frame the following issues : 1) Whether the suit is bad for non-joinder of necessary parties? 2) Whether the plaintiff is entitled for khas possession? The suit is remanded back to this Court with direction to frame the addition iss ue (as framed above) and the parties arte allowed to adduce further evidence. Further perusal of above judgment I find that Hon’ble Appellate Court remanded t he suit with specific direction. Now, plaintiff filed the petition for impleading the necessary parties. If the p rayer of plaintiff is allowed at this stage of the suit then the direction of Ho n’ble Appellate Court and the additional Issue will stand redundant. Therefore, in conformity of the direction of Hon’ble Appellate Court, the prayer of plaintiff can not be allowed. Hence the petition is rejected. The Misc.(J) case is disposed of accordingly. 7. Mr. T.C. Khatri, learned counsel for the petitioner by referring to the provision of Order 6 Rule 17 has submitted that the plaintiff has a right to see k for amendment of the plaint before commencement of the trial for the purpose o f determining the real question in controversy. Since the decree of the trial Co urt was set aside and the matter was remanded back by the appellate Court for fr esh trial on the issues framed by the Appellate Court, in-accordance with law, t echnically the trial before the Court below is yet to commence, therefore, the p etition filed by the petitioner-plaintiff seeking amendment ought not to have be en rejected by the trial Court without reasonable cause.. 8. Learned counsel for the respondents however, vehemently submitted that s ince the matter is remanded by the appellate Court by framing two issues, with a direction to try the case on the aforesaid two issues, the trial Court would no t have any jurisdiction to consider any other prayer for amendment of the plaint . 9. However, fact remains that when the appellate Court has remanded the cas e to the trial Court after setting aside the judgment and decree passed by the C ourt, and by framing issues technically the suit has come back to the same stage from where the trial has to begin. Therefore, any restriction or limitation imp osed on the trial court in taking follow up action as per the procedure provided in the Code of Civil Procedure, would stifle the cause of justice. Any prayer f or amendment of the plaint, more so, when the trial of the case after remand is yet to commence, there is no restriction in exercise of power under Order 6 Rule 17 of CPC by the court to consider the prayer for amendment of the plaint. In t he facts and circumstances of the case, the learned trial Court ought to have al lowed the petition filed by the plaintiff-petitioner seeking amendment of the pl aint to implead the respondents. 10. In view of the above discussion, I am of the considered opinion that th e learned trial court failed to consider the provision of law under Order 6 Rule 17 of CPC and thereby passed the impugned order refusing amendment as sought fo r, when impleadment of the defendant, was held to be necessary by the appellate court, for determining real question in controversy. 11. In view of the above, the impugned order passed by the trial Court warra nts interference by this Court, since the trial Court failed to exercise its jur isdiction vested in law. 12. Accordingly, the petition filed by the plaintiff-petitioner is allowed a nd the impugned order is set aside. The trial Court is directed to allow the pla intiff-petitioner to amend of the plaint as prayed for, by incorporating the nam es of Sri Jayanta Kr. Ghosh and Sri William Zaidi as the defendants in the case. Thereafter, the learned trial court shall proceed with the trial of the case in -accordance with law. 13. The revision stands disposed of. 14. No costs.