(Dwarampoodi) Venkamma vs Goparaju Perraju

Curgenven, J.—This is an appeal from an order of 2nd Additional Subordinate Judge of Narsapur remanding O.S. No. 11 of 1921 to the

file of the District Munsif of Tanuku for the admission of additional evidence. The course which the litigation took has been reviewed in his order.

There was a question whether the plaintiff had secured a division and delivery of the half share in the lands which he obtained under the

compromise decree in the suit of 1900. Upon that question a delivery receipt was tendered in evidence before the District Munsif and by him

rejected on the ground that it was a document compulsorily registrable. The learned Subordinate Judge, differing from this view, held that the

document was admissible and remanded the case for the admission not only of this document, but of some other documents for the plaintiff and

also for the contesting fourth defendant. A question is raised whether this order is appealable as having been passed under Order 41, Rule 23,

Civil P.C., and that necessitates a finding whether the District Munsif in excluding the delivery receipt (found subsequently admissible) can be said

to have decided the suit upon a preliminary point. In the now well-known Full Bench case, Rama Nair v. Krishna Nambudri AIR 1922 Mad. 505,

that expression has been given a very wide construction, that it is any point the decision of which avoids the necessity for the full hearing of the suit.

It is contended that wherever evidence properly admissible is rejected, the full hearing of the suit is to that extent curtailed or restricted; but I think

it is impossible to accede to this argument in that broad form because it is perfectly clear that there may occur cases of refusal to admit evidence

which did not in any respect thereby limit the scope of the suit; and where the learned Chief Justice in the case just quoted instanced a failure to

admit tendered evidence I do not think he can be understood to have meant that in all such cases the disposal was necessarily upon a preliminary

point. In my, view, rejection of evidence in order to produce such a consequence must be found to have restricted the trial of the suit, as for

instance in the Full Bench case itself, where the plaintiff wished to let in evidence of forfeiture of the service tenure which the learned District Munsif

refused to accept on the ground that his claim must be decided upon the construction of the document evidencing the grant.

In the present case it is scarcely contended that the omission to receive evidence only one piece of which, the delivery receipt, was tendered

before the District Munsif, caused him to restrict what would otherwise, had it been admitted, have been the scope of the trial. I find accordingly

that no appeal will lie inasmuch as the learned Subordinate Judge''s remand order cannot be held to have been passed under Order 41, Rule 23.

The question then arises whether we should treat the appeal as a civil revision petition on the ground that in passing such an order the appellate

Court acted without jurisdiction, and this raises the question whether, beyond the express provisions contained in the rules under Order 41, an

appellate Court possesses an inherent power to remand a suit for fresh trial by the Court of first instance. Where the appellate Court considers that

for any cause, such as a refusal by the Court of first instance to admit evidence, any document should be produced or any witness should be

examined, it may under Rules 27 and 28 rectify the omission itself or it may direct the lower Court to take such evidence and to send it when taken

back to itself- It is quite clear that in the present case the learned Subordinate Judge might have availed himself of these provisions, keeping the

appeal upon his file until the direction given to the lower Court had been discharged by the return of the record, including the subsequently received

evidence. Had he inherent powers apart from these provisions to remand the case for the reception of the evidence and for final disposal by the

trial Court? The facts are very closely comparable to those which Odgers, J., and myself dealt with in B. Mallayya v. P. Veerayya AIR 1927 Mad.

335, where the question arose whether an inherent power existed in a case where the appellate Court might have acted but did not act under

Order 41, Rule 25. In that case I came to the conclusion with some hesitation that the claim to inherent powers must be allowed, and in another

case, C. M. A. No. 305 of 1925 which came before a Bench similarly constituted, but which did not involve a conflict between the course

adopted by the appellate Court and any expressed rule, we held that there was an inherent power to amend the plaint, recast the issues and

remand the case for further hearing and disposal This latter-case was largely based upon the authority of Radhakrishna Rao v. Venkata Rao AIR

1925 Mad. 229. For an instance of the recognition of inherent powers in a case where the Code expressly provides an alternative procedure I

may cite Muhammad Maracayar v. Rangaswami Naidu AIR 1921 Mad. 716 which followed A.T.S.P. Anthappa Chetty Vs. Ramanathan Chetty,

. The latter case has been criticized by the learned Chief Justice in Raman Nayar v. Krishna Nambudripad AIR 1922 Mad. 505, not, however,

upon this point but upon the construction there put upon the phrase '' preliminary point. "" In view of this state of the authorities. I do not find

sufficient ground to reconsider the view which I took in B. Mallayya v. P. Veerayya AIR 1927 Mad. 335, although I think that in the present case

the learned Subordinate Judge would have been better advised had he conformed his order to the provisions of the rules above referred to I must

hold accordingly that the lower appellate Court had inherent power to order the remand and that the case is, therefore, not one which should be

interfered with in revision. I would therefore dismiss the appeal with costs.

Ananthakrishna Ayyar, J.

In this case the District Munsif dismissed the plaintiff''s suit to recover possession of. certain property. He framed the necessary issues and

allowed all the evidence which the parties wanted to adduce to be recorded, except that he ruled against the plaintiff''s contention and held that a

particular document which the plaintiff wanted to put in was not admissible, because, in the view of the District Munsif, it was a document which

was compulsorily registrable. The plaintiff preferred an appeal and the learned Subordinate Judge, coming to the conclusion that the District Munsif

was not right in his view about the compulsorily registerable nature of the document, ruled that it was admissible in evidence. The defendant

(respondent before the lower appellate Court) also applied to have some further documents admitted in the case though he did not tender the same

in the Court of first instance. The learned Subordinate Judge came to the conclusion that the document tendered by the plaintiff but declined to be

accepted by the District Munsif should be accepted and that the defendant should also be allowed to put in the documents tendered by him for the

first time in appeal. The procedure adopted by him was not to retain the appeal on his file to be finally disposed of by him, after either taking the

evidence himself or after directing the District Munsif to record the evidence and send it on to the lower appellate Court. What the learned

Subordinate Judge finally did was to reverse the decree of the District Munsif and to remand the whole suit for fresh disposal by the District Munsif

after recording the additional evidence which the Subordinate Judge decided that the parties were entitled to adduce. Against this order of remand

passed by the Subordinate Judge the defendant has preferred this civil miscellaneous appeal to the High Court. The first question to be considered

is whether an appeal lies in this particular case. Having regard to the decision of the Full Bench in Raman Nayar v. Krishna Nambudripad AIR

1922 Mad. 505, I am clear that the present is not a case of a decision by the first Court on a preliminary point and of that decision being reversed

by the lower appellate Court. I need not dilate on this point because I entirely agree with my learned brother''s view on this particular aspect of the

case. If we press this contention of the appellant to its logical limit, I think it would follow that, in a case where the first Court tried all the issues

framed in the case and recorded evidence on all the issues, but declined to allow one document to be filed or one witness to be examined or even

one question to be put, with which ''view the appellate Court might not agree, such a case should be held to be a decision by the first Court on a

preliminary point. I think a statement of the consequences would be enough to induce one to come to the conclusion that the present could not at

all be said to be a case of a decision by the first Court on a preliminary point.

Holding that the present is not a case of a decision on a preliminary point coming, under Order 41, Rule 23, Civil P.C., the second question is

whether we should interfere with the decision of the Subordinate Judge in this case. Cases have decided that there is an inherent power in appellate

Courts to remand cases on grounds not strictly coming within Order 41, Rule 23, Civil P C. I will therefore proceed to consider this particular case

on the assumption that the lower appellate Court had an inherent power to remand. But what the lower appellate Court has done in this particular

case is to exercise its inherent powers of remand in a case where the law has specially pointed out the course to be followed. I quite agree that the

Court would be entitled to exercise its inherent powers in a way which it thinks fit and proper in the circumstances, provided there were no specific

directions to the contrary in any specific enactment. But if the legislature has provided a particular procedure to be followed on a particular state of

facts, I think it is not open to the Court to follow a procedure which is contrary to what the legislature has. expressly pointed out to be the proper

procedure in such cases; In Order 41, Rules 27 and 28 the legislature has specifically pointed out what course should be adopted in case the

appellate Court should be of opinion that the first Court has excluded evidence which ought to have been included, or in case the appellate Court

thinks that to enable it to pronounce judgment some additional evidence is required Under Order 41, Rule 28, it is open to that Court to allow

evidence to be adduced before itself, or, if it thought it would be more convenient to direct-the first Court to record evidence and transmit the

same to it. That is not the procedure which has been followed in this particular case. In the teeth of the specific provisions as to the course to be

followed in such a case the lower appellate Court has reversed the decree of the District Munsif and remanded the whole suit for fresh disposal by

the District Munsif after recording additional evidence. I think the course adopted by the lower appellate Court is one which could be properly

characterized as exercising jurisdiction illegally and with material irregularity. I am inclined to say that it is material irregularity be-cause when a suit

has been dismissed by the Court of first instance there is a decree in favour of the defendant, and pending the reversal of that decree the defendant

has acquired a very valuable right. That the lower appellate Court should without going into the merits reverse such a decree and direct a retrial is a

point which materially affects the rights of the successful defendant in the first Court. In support of this view that when there is a specific provision

of law Courts should not exercise their inherent powers in a way contrary to the specific provisions, I may cite the remarks of the learned Chief

Justice in Raman Nayar v. Krishna Nambudripad AIR 1922 Mad. 505. This is what his Lordship says:

If I agreed that Rule 23 limited the power to remand to cases within its terms, I should not readily accede to the proposition that where the Code

expressly limits the power of a Court, there can co-exist an inherent power in that Court to disregard that limitation.

That was the view accepted by Spencer and Venkatasubba Rao, JJ., in Malayandi Goundan v. B. Poosari AIR 1923 Mad. 331. Their

Lordships say at p. 160:

Where the Code expressly limits the power of a Court, there cannot co-exist an inherent power in that Court to disregard that limitation.

I need further only refer to Ghuznavi v. Allahabad Bank, Ltd. [1917] 44 Cal. 929, where the same view was taken by a Full Bench of the

Calcutta High Court. I think it is a principle of law that a Court cannot invoke an inherent jurisdiction where there is a provision in the Code, which,

if applied, would meet the justice of the case: see Asutosh Ghosh and Another Vs. Indu Bhusan Ghose, . If the matter be res integra I would hold

that the procedure adopted by the lower appellate Court in this particular case, contrary to the express provisions of Order 41, Rules 27 and 28,

is unwarranted; and in exercising the jurisdiction by which the learned Judge reversed the decree and sent the whole case for retrial, I would hold

that he acted illegally and with material irregularity in the exercise of his jurisdiction. I would accordingly set aside the order of remand passed by

him and direct him to restore the appeal to file and proceed with the case as pointed out in Order 41, Rules 27 and 28. But I find that I am bound

by decisions of Benches of this Court where in similar circumstances this Court has held that the Subordinate Judge was entitled to follow the

course that he did in this case. In addition to the decision in Balla Mallayya v. Peddi Veerayya AIR 1927 Mad. 335 and the cases referred to

therein, there is the decision of Ayling and Odgers, JJ., in the case of Muhmmad Maracayar v. Rangaswami Naidu AIR 1921 Mad. 716 which

seems to be ad idem with the facts of the present case. There also it was a case of shutting out of some evidence and the High Court held that no

appeal lay and that the High Court could not interfere in revision. Having regard to the authorities, I find that I could accede to the request made by

Mr. Somasundaram that his ''appeal should be converted into a revision petition with a view to the High Court interfering in revision. As I find in

the present state of the authorities that it would not be open to me to pass orders in his favour even if I should treat the appeal as a revision

petition; I agree with my learned brother that this appeal should be dismissed with costs.