Chhotoo Lal vs Mt. Bibi Sakina and Another

Manohar Lall, J.—In this case the learned District Judge acting under the provisions of Order 41, Rule 11 has dismissed the appeal summarily.

The present second appeal is against that order dated 24th June 1935. It has been held by a Division Bench of this Court in Makhu Sahu v. Kamta Prasad A.I.R.1934. Pat. 341 that the Court of the District Judge has jurisdiction to dismiss an appeal summarily and in such circumstances no second appeal is entertainable by the High Court.

The same view was followed by Wort J. as Chief Justice sitting with Dhavle J. in Mahabir Das v. Sadho Choudhuri A.I.R.1936. Pat. 505.

I therefore hold that no second appeal lies in the present case and I shall treat the appeal as if it was an application in revision. It is obvious to my mind that in the present case elaborate questions of fact fall to be decided and also questions of law. , Therefore this is not a case where the learned Judge should have dismissed the appeal summarily. He should have admitted the appeal, heard arguments on both sides and applied his mind to the oral and documentary evidence in the case and then come to a decision, which in many cases being a decision on fact would be final 1 between the parties. The rule is made absolute and it is directed that the case be remanded to be heard and determined according to law. There will be no order for costs in this appeal.

After the judgment had been delivered, my attention was drawn to a case decided by my brother Rowland in Jamuna Prasad Rai v. rajballam Rai A.I.R.1937. Pat. 349 in which his Lordship has pointed out that the order of the dismissal of an appeal under Order 41, Rule 11, Sub-rule (1) is appealable as a decree and in that case the authorities referred to by me above were considered.

The result is that whether I treat this appeal as a second appeal or revision, I think that the proper order to be made in this case is the order I have passed above.