Brijlal and Others vs Tikhu and Others

Ramabhadran, J.C.

This was, originally, filed as a First Appeal from an order of remand under Order 43, Rule 1(u), Civil P.C. For reasons stated in this Court''s order dated 11-1-1955, however, I held, that the order of remand was not under Order 41, Rule 23, but u/s 151, Civil P. C., and consequently, no appeal lay. At the request of the appellants'' counsel, the memorandum of appeal was treated as a revision petition and admitted on the point that the order of remand did not conform to law.

To-day. I have heard learned counsel for the parties. This matter had come up before this Court on two earlier occasions. When it was last heard by this Court on 3-4-1954, I had directed the learned District Judge to rehear the appeal after shaking off the impression that there had been any finding regarding custom by, my learned predecessor in his order dated 2-1-1952. Towards the end of my order, I had observed:--

"The hands of the District Judge are not tied at all and in rehearing the appeal, he will have all the powers conferred on a Court of Appeal by the Civil Procedure Code. If he considers that any particular matter or aspect of the case requires further investigation, he would be at liberty to investigate that matter."

When the appeal went back to the learned District Judge (Mr. J. P. Thakore), he felt that it was necessary to examine the parties in respect of the allegations made in paras 2 and 4 of the plaint and to grant the parties an opportunity to lead evidence on issue No. 8. Having come so far, the District Judge then passed an order remanding the case to the trial Court with directions to examine the parties on paras 2 and 4 of the plaint, if necessary, to let the pleadings be amended on the strength of those statements, to recast issue No. 8, if need be, and then allow the parties an opportunity to lead evidence on the issue as recast and, finally, decide the suit afresh. Learned counsel for the petitioners contended that there was no justification for permitting the plaintiffs to set up a new case. Mr. Anand for the respondents, on the other hand, urged that the pleadings were already there and it was only a question of interpreting them correctly.

It does not appear necessary for me to express an opinion on this matter, because it seems to me that the order of remand could have been dispensed with. Any difficulty experienced by the learned Dt. Judge could have been overcome by having recourse to the provisions of Order 41, Rule 25 or 27. I may point out that Rule 25 of Order 41 empowers the appellate Court, in a case where the trial Court has omitted to frame or try any issue or determine any question of fact, which appears to the appellate Court essential to the right decision of the suit upon its merits, to frame ''the necessary issues and refer them to the trial Court for its findings. Further, if fresh issues cannot be framed without examining the parties, the Court of Appeal certainly is not debarred from examining them. No reasons have been given by the learned District Judge for refusing to proceed under Order 41, Rule 25 or 27 and instead proceeding u/s 151. In Purshottam Dattatraya Shetye Vs. Yeshvadabai Jayadeo Shetye, Broomfield, J., remarked that:

"The Court has an inherent power to remand a case, even where Rule 23 does not apply provided that the interests of justice require it. But it has no inherent power to disregard a method of procedure, enjoined or provided by the Court and adopt a different one, unless it really is necessary in the interest of justice. Hence, where the lower appellate Court purports to remand a case under its inherent power, in a case covered by one of the rules of the Code, it is a material Irregularity in the exercise of its jurisdiction by the lower appellate Court which the High Court can cure by interfering in revision."

There is another aspect of the case. The suit, out of which this revision petition arises, was instituted on 19th Chet 2004 B. Since then It has had a chequered career. The suit was de- cided by the trial Court on 15-7-1949. Subsequent to that, the matter has been three times before this Court and three times before the District. Judge. It seems desirable that the matter should be finally disposed of on its merits as soon as possible.

In view of all that has been said above, I allow this revision petition and set aside the order of remand made by the learned District Judge (Mr. Thakore) on 9-6-1954. The present Dt. Judge, or the Additional District Judge (in case the appeal is transferred to him) will please take up the appeal and dispose of it in accordance with law at an early date. In case he considers that any matter needs further investigation, it would, of course, be open to him to proceed under Rule 25 or 27 of Order 41. It goes without saying that it would also be open to him to examine the parties before framing any further issues under Rule 25, in case he thinks such a course necessary. Learned counsel for the petitioners does not press for costs. Consequently, there is no order as to the costs of this revision petition.