Ishwara Bhatta and others vs Ishwara Bhatta and others

S.R. Das Gupta, C.J.

1-12. One of the questions which arose during the hearing of this appeal was, whether or not we are competent to determine the validity or the propriety of the order of remand which was made by the Madras High Court as indicated before. In Other words, the question which arose was whether after an order had been made under O. 41, Rule 25 of the CPC by a Bench, another Bench which was subsequently called upon to dispose Of the appeal finally, after the findings of the lower appellate Court have been received can question the validity or propriety of the said order passed under O. 41, Rule 25 of the Code of Civil Procedure. The learned advocate for the appellants contended before us that the earlier order was an order passed with jurisdiction and cannot be questioned by the subsequent Bench which is called upon to finally dispose of the second appeal. In support of that contention he cited before us a decision of the Calcutta High Court in Kaminikumar Deb v. Durga Charan Nag. AIR, 1923 Cal 521.

That case was decided by Sir Ashutosh Mookerjee J. and Rankin J. as he then was. Their Lordships expressed the view that as a matter of principle it cannot be affirmed broadly that when an order has been made under O. 41, R. 25, the Court called upon to determine the appeal finally under O. 41, R. 26, is competent to treat the order as erroneously made. No doubt, their Lordships proceeded to hold, as pointed cut in Bonchari v. Ainoddeen Biswas, 24 Suth WR 137 when an order has been made under O. 41, R. 25, the appeal remains pending and undisposed on the file of the Court. But, their Lordships held, the order, whether rightly or wrongly made, is an order made with jurisdiction and its validity may be attacked on review; but till it has been set aside in the appropriate proceeding, it must be treated as an inter locutory order which is operative in law. In support of that view, their Lordships referred to G.H. Hook v. Administrator-General of Bengal, 48 Ind App 187: (AIR 1921 PC 11) and Ramkripal v. Rupkuari, 11 Ind App 37 (PC).

As against this contention of the learned advocate for the appellants, the learned advocate for the respondents cited before us a number of rulings in support of his contention that as the whole matter is before the Bench which has to determine the second appeal finally, the said Bench can go into the question as to whether or not the previous order made under O. 41, R. 25 was rightly made. The first case which was cited before us in support of this proposition is Hiatunnessa Bibi v. Kailash Chandra, 16 Cal LJ 259. It should be noted at the very outset that the order which was made under O. 41, R. 25 of the CPC in the said case was made by a single Judge. The case was later on referred by the said Judge to a Division Bench for final disposal. The Division Bench which was presided over by Chief Justice Maclean took the view that they were competent to determine the question as to whether or not the remand order was rightly made. The observations of their Lordships on which the learned advocate for the respondents relied were as follows:

On the other hand, it is contended that the whole case being now before us, it is open to us to decide whether the remand order of Mr. Justice Geidt was justified, the contention being that the District Judge had found, as a fact that upon the question of possession the plaintiff was not barred, and consequently that the remand order ought not to have been made. We must either decide the whole matter now, or send the case back to Mr. Justice Geidt. If we were to decide the appeal on the last finding as to possession by the Judge on the remand and so dispose of the whole case, we should deprive the plaintiff of his right to appeal against the propriety of the remand order. If we send the case back to Mr. Justice Geidt it would, I think be open to him to reconsider his order for the remand, but, if he did not do that, but dismissed the suit on the last finding as to possession, the plaintiff could appeal and challenge the propriety of the remand order. To adopt this circuitous procedure would only entail further and unnecessary cost on the parties: and instead of driving the parties to this course, I think we may deal with the whole matter, as Mr. Justice Geidt has asked us to do and ''treat the matter as if the propriety of the remand order were now before us, as it would be on an appeal from Mr. Justice Geidt.'' The appellant asks us to adopt a course which would have the effect of depriving the plaintiff of his right of appeal against the remand order: we ought not to do this. I think we must regard the substance, and not the technicalities of the case, (the underlining (here into * *) is mine).

From these observations it appears that their Lordships were treating the matter as if the propriety of the remand order was before them as would be on an appeal from Mr. Justice Geidt. In other words, their Lordships placed themselves into the position of an appellate court hearing an appeal against the said order of Mr. Justice Geidt. Whether or not their Lordships were justified in doing so is a question with which we are not concerned in this appeal. The fact is that it is on this basis that their Lordships proceeded to determine the question of propriety of the said remand order.

At this stage I should mention that I find some difficulty in accepting the view expressed by (heir Lordships, viz. that if their Lordships were to decide the appeal on the last finding by the Judge on remand and so dispose of the whole case then the plaintiff would be deprived of his right of appeal against the propriety of the remand order. In my opinion, after the matter is finally disposed of and if there is an appeal against the said final decision then this question, viz. the propriety of the order of remand can be agitated in the said appeal. In any event, as already mentioned, their Lordships proceeded on the basis that the propriety of the remand order was before them as it would be on an appeal from Mr. Justice Geidt

The next case on which reliance was placed by the learned advocate for the respondents is Official Assignee of Calcutta v. Bidya Sundari Dasi, 30 Cal LJ 428: (AIR 1920 Cal 93). The learned advocate for the respondents drew our attention to the fact that Sir Asutosh Mookerjee was one of the Judges who decided this case. Their Lordships on this point observed as follows;

On behalf of the plaintiff respondent, the propriety of the order made by Chitty and Beach-croft JJ. has been called in question, and our competency to reconsider its necessity has been supported by reference to the decisions in 16 Cal LJ 259 Hanuman v. Gursahay Singh, 18 Cal LJ 181 and E.I.R. Co. v. Changay Khan, 22 Cal LJ 212 : (AIR 1916 Cal 554). It is needless to define the exact powers of the Court at the stage of the final hearing of the appeal; it is sufficient to state that the entire appeal is open for consideration and we must base our decision on such portions of the materials on the record as appear to us to be relevant. We are further clearly of opinion that for the proper determination of the matter directly in controversy between the parties, an investigation of the issues remitted for trial by Chitty and Beachcroft JJ was essential.

I do not think that these observations support the contention of the learned advocate for the respondents. It is clear from the said observations that their Lordships did not enter into the question as to what exactly the powers of the Court at the stage of the final hearing of the appeal were. According to their Lordships it was sufficient to state that the entire appeal is open for consideration and their Lordships must base their decision on such, portion of the materials on record as would appear to them to be relevant Their Lordships found; that investigation of the issues remitted for trial by the learned Judges was essential. Their Lordships did not lay down any such proposition as contended for by the learned advocate for the respondents, viz. that the Court at the stage of the final hearing of the appeal could determine the propriety or otherwise of the order of remand made by the Bench. Such clear enunciation of the law on the latter point is to be found in the decision reported in AIR 1923 Cal 521 to which I have referred

The next case cited before us is Upendra Lal Gupta and Others Vs. Jogesh Chandra Roy, . It is true that their Lordships in that case held that an order of remand made under O. 41, R. 25 of the CPC decides nothing, and that the reasons that the Court gives for its support are given merely for its own convenience for the purpose of the determination of the appeal under O. 41, R. 26 of the CPC and for helping the lower court to proceed rightly in carrying out the order. Their Lordships then observed and the learned advocate for the respondents strongly relied on those observations that,

the Court, either the same or differently constituted, when determining the appeal finally has ample jurisdiction to go back'' on the views expressed in the order of remand passed under O. 41, Rule 25 of the CPC and indeed it would fail in its duty if in deference to those views which are entitled to the highest respect, it persists in them, although it is satisfied that they are erroneous.

In support of this conclusion their Lordships referred to a number of decisions of the Calcutta High Court, last of which was the decision reported in AIR 1923 Cal 521. If in making the said observation then Lordships meant to say that the subsequent Bench, which is called upon to decide the appeal finally, can question the propriety of the order of remand, then that decision reported in AIR 1923 Cal 521 does not support that view and I am also, with all respects, unable to accept it That decision clearly lays down that the earlier order was an order made with jurisdiction and until it has been set aside in appropriate proceedings it must be treated as operative in law. I should also mention that except referring to the said decisions their Lordships did not deal with the same. Their Lordships also did not give any reason, except what is to be found in the observation itself, for the said conclusion.

It should, however, be noted that what their Lordships said was that the court, either the same or differently constituted, when determining the appeal finally has ample jurisdiction to go back on "the views as expressed in the order of remand". It is not clear as to what their Lordships meant by saying "the views expressed in the order of remand". If their Lordships, meant thereby the views that had been expressed by the earlier Bench while making the order of remand and not the order of remand itself, then I have no difference with their Lordships on this point. If, however, their Lordships meant, by the said observation that the order of remand itself may be questioned by a subsequent ? Bench, then I am unable to agree with the same.

I am, however, inclined to hold that what -their Lordships meant was that whatever views, as to the merits of the case, may have been expressed by the earlier Bench while making the order of remand passed under O. 41, R. 25 of the Code of Civil Procedure, the same can be examined by the Court which finally determines the appeal. That view, as I shall show hereafter, accords with the view taken in the case reported in AIR 1923 Cal 521. In my opinion, it is only in support of that view that their Lordships could and lid refer to the said case reported in AIR 1923 Cal 521. In any event, if their Lordships meant to say that the subsequent Bench can question the propriety of the remand order, then I am unable to agree with the same.

The next case to which reference was made is Bengal Coal Co. Ltd. v. Balmukunda Goenka, ILR (1951) 1 Cal 168. I do not think that this case is of any assistance to the respondents for their present contention. What their Lordships held in that case was that a Court hearing an appeal finally under O. 41, R. 26 of the CPC is not relieved of the duty Of examining the soundness of a point because of the expression of judicial opinion upon it in the order of remand under O. 41, R. 25 or the concession by the lawyer of a party on a point of law regarding the same. I have already mentioned that any expression of judicial opinion, upon a particular point involved in the appeal in the order of remand made under O. 41 R. 25 can always be revised by Bench which is subsequently called upon to dispose of the appeal finally. In my opinion also, the concession by a lawyer or a party on a point of law regarding the same would not also be binding at the subsequent stage of the hearing of that appeal. This is all that this case has decided. It did not lay down any proposition viz. that the propriety of the Order of remand can be questioned by the subsequent Bench.

The next decision on which the learned advocate for the respondents strongly relied is Mubarak Husain v. Bihari, ILR 16 All 306. In that case a single Judge of the High Court of Allahabad hearing the second appeal made an order of reference under S. 566 of the Code of Civil Procedure. On the return to the reference the appeal came before another Judge, who, holding that the reference was unnecessary, and that the original findings of fact in the Court below were sufficient to dispose of the appeal, disregarded the findings on the reference and dismissed the appeal. That decision was upheld in appeal under S. 10 of the letters Patent. This case, in my opinion, is clearly distinguishable from the present case. From the judgment of the learned Judge, who finally disposed of the second appeal, it appears that the said appeal was conveniently disposed of on two grounds. One of such Grounds was that the property in question was not waqf property and the other was that the will would not take effect until the death of the testator. Having disposed of the appeal on those grounds his Lordship observed that there was no necessity to make an order of remand and his Lordship thought that such an order of remand was unnecessary. What were the points on which the earlier order of remand was made is not clear from the judgment of the said Court.

The judgment of the Bench which heard the appeal under the Letters Patent is also very short and does not throw any light on this point. It seems to me that the issues on which findings were called for under O. 41. R. 25 were not ''he issues on which the learned Judge thought that the appeal could be disposed of and did dispose of the same. It is in that context that the learned Judge held that it was unnecessary to call for a finding on those issues. The said decision is no authority for the proposition that if on a material point a finding is called for, the Court which subsequently decides the appeal finally is entitled to ignore that finding. This decision, in my opinion, is not helpful to the respondents.

The other two cases cited by the learned advocate for the respondent do not require any serious consideration. The case reported in Gopinath v. Sat Narain, AIR 1923 All 384 is a decision of a singh the and in the case reported Musammat Masihunnissa and Others Vs. Musammat Kaniz Sughra, there is only a passing observation which was not necessary to be made for the purpose of disposal of the said case.

On an analysis of the cases which have been cited by the learned advocate for the respondents it appears that the proposition laid down in AIR 1923 Cal 521 still remains good law and should be followed I am also in entire agreement with, the view taken by their Lordships in the said case. It is difficult to see how a decision by one Bench can be questioned at the hearing of the same matter by another Bench having only a concurrent! jurisdiction. The earlier order of remand is all the same an order passed by the High Court though at the earlier stage and, as pointed out by their Lordships in the said case, that Order can only be set aside in appropriate proceedings. It cannot, in my opinion, be set aside when the matter finally comes up for hearing either before the same Bench or before a subsequent Bench. An order made under O. 41, R. 25 of the CPC is nonetheless a valid order made with jurisdiction. I find no reason for the proposition that such an order can be challenged by a subsequent Bench which is called upon to dispose of the appeal finally.

That being the position regarding the order of remand made by the Bench of the Madras High Court and the findings which have been sent by the lower appellate Court pursuant to that order, the next question which arises for our decision is whether or not the findings of the lower appellate Court can be challenged before us on any ground of law.

It is now well established that if a finding is called for by the High Court under O. 41, R. 25 of the Code of Civil Procedure, such a finding can be challenged in a second appeal only on grounds of law. This has been made clear in a decision of the Calcutta High Court reported in Subodh Gopal Bose Vs. Brojendra Kishore Roy, . One of the contentions urged before their Lordships in that case was that the finding of fact returned by the lower appellate Court can be assailed on its merits. That contention was negatived by their Lordships. Their Lordships held that where findings are remitted to the High Court by the first appellate Court under O. 41, R. 25 the appeal in the High Court continues to be a second appeal and in the absence of special provisions in law, the findings of facts, when they are before the High Court, are immune from attack, except on the ground of error of law or procedure within the meaning of S. 100 of the Code of Civil Procedure. This position was also not disputed by Mr. Govinda Bhat appearing On behalf of the respondents.

Mr. Govinda Bhat, however, contended before us on the authority of the very case on which Mr. T. Krishna Rao relied, i.e. AIR 1923 Cal 521, that although a finding may be called for on certain specific issues under O. 41, R. 25 of the C.P.C., the whole appeal remains pending and the ultimate .decision must be based upon the consideration of all the findings, before and after the said order. This, as was pointed out by their Lordships in that case, is plain from the language used by the Legislature in O. 41, R. 26 and the evidence and findings become part of the record in the suit and when the Court proceeds to determine the appeal such determination must be based upon all the materials on the record i.e. those which were part of the record as it stood before the order under O. 41, R. 25 was made as also what has been added in the Court of appeal, viz. the order together with the evidence taken pursuant thereto and the findings thereon.

Relying on these observations Mr. Govinda Bhat contended before us, that all the materials in the case have to be examined before a final decision can be given in this appeal. In other words, his contention was that notwithstanding the fact that fresh findings have been given by the lower appellate Court on the questions referred to it, this High Court is not prevented from examining the findings which were already there on those very points in the record.

Up to this extent, the contention of Mr. Govinda Bhat is scud and should be accepted. But, as I have already indicated, the findings of the lower appellate Court, which were already on record before the order under O. 41, R. 25 of the C.P.C., was made, were by no means clear and could not be sustained. That being so, I am of the opinion that the respondents cannot succeed in this appeal on those findings. Those findings have to be set aside.

(Then after dealing with another contention his Lordship proceeded).

In the result, therefore, the findings of the lower appellate Court arrived at on the order of remand made under O. 41, R. 25 of the C.P.C., should stand.

This appeal succeeds. The decree of the lower appellate Court is set aside and the decree of the trial Court is restored. The appellants will get their costs of this appeal.

Hombe Gowda, J.

30.I agree.