Kolandayammal vs Krishnaswami Goundan and Others

Mack, J.—The appellant is defendant 3. The appeal is against a wholly untenable order passed by the learned District Judge of Coimbatore

remanding O. S. No. 188 of 1947 on the file of the District Munsif''s Court, Dharapuram, for fresh disposal with an opportunity to be given to the

parties to adduce additional evidence. The plaintiff, who sued in ''forma pauperis'' for partition and separate possession of some property, is the

son of the appellant''s brother. The appellant was in the position of an alienee of certain items of property. The District Munsif who first heard the

suit partially decreed it and in A. S. No. 63 of 1949 the suit was remanded for fresh disposal on the ground, it would appear, that the evidence and

the findings were incomplete. Subsequent to this remand, P. Ws. 2 and 3 and D. Ws. 3 to 6 were examined.

The learned District Munsif found on all the issues framed and again gave the plaintiff a partial preliminary decree. The learned District Judge

again remanded the suit for fresh disposal after confirming the findings of the learned District Munsif on issue No. 2 to the effect that a sale dated

8-12-1937 was not binding on the plaintiff. As regards the finding on Issue No. 1 he expressed his dissatisfaction as to the manner in which the

learned District Munsif dealt with it and remanded the whole suit for fresh disposal in the light of certain observations which are extremely difficult

to follow giving the parties a second opportunity to adduce additional evidence. Nowhere In his order is there reference to the first remand.

The learned District Judge criticised the learned District Munsif as regards the following observation he made:

A perusal of the evidence of D. Ws. 1 and 6 will convince that Rangaswami Naicker was a trustee not only to defendant 1 but to various persons

of his village.

It may be mentioned that defendant 1 was no other than the grandfather of the plaintiff and the father of defendant 3. The District Judge considered

that the trial Court had perfunctorily left the task of going through the evidence and discussing it to be done by someone else. In a prior portion of

his judgment the District Munsif expressed the view that the evidence of D. Ws. 3 to 6, that is, those examined after remand had been purchased.

The learned District Judge should certainly not have remanded the suit a second time for disposal, in the circumstances with a further opportunity to

the parties to adduce additional evidence. All the evidence was on record and it was the clear duty of the lower appellate Court to have gone into

it, found also on the other issues and finally disposed of the appeal. The learned District Judge in his remand order considered further that two

other issues were necessary and directed them also to be tried and determined.

Both the learned advocates agree that the learned District Judge should not have in this case proceeded under Order 41, Rule 23, C. P. C. This

provision of law by which the appellate Court is empowered to remand a case for fresh disposal is, as it appears to me, becoming subject to grave

abuse by lower appellate Courts in studious disregard of Order 41, Rules 25 to 28 which make specific provision for a call to the trial Court to

submit a finding on any further issue which may be considered necessary after taking additional evidence if directed. Order 41, Rule 23, C. P. C.

does not contemplate an appellate Court confirming substantial findings of fact and then remanding the entire suit for fresh disposal because it

considers a finding on some other issue unsatisfactory or that finding on some further issue is necessary. This partial confirmation of the trial Court''s

judgment is wholly incompatible with the remand of the suit for fresh disposal. Such a remand is most embarrassing to a trial Court and also to the

appellate Court which may hear the matter after remand, partially bound as it is by the confirmation of one or two findings by the first appellate

Court which directed the remand.

There is another objection to such remands in that the findings can only be set aside in a second appeal, though of course, such partial findings

when made as in the present case can be set aside as wholly objectionable and nowhere contemplated under any of the provisions of Order 41, C.

P. C. in an appeal such as this. It must be finally remembered by lower appellate Courts that whereas orders of remand under O. 41, Rule 23 are

appealable orders passed under Order 41, Rules 25, 26 and 28 are not appealable for the simple reason that the appeal has not been finally

disposed of. In cases such as this where the obvious course which the lower appellate Court should take is one under these non-appealable

provisions, a wholesale remand under Order 41, Rule 23 , C. P. C. which gives an easy statistical final disposal to the appeal, so far as the lower

appellate Court is concerned must be strongly deprecated. In Kalahasti Veeramma Vs. Prattipati Lakshmayya and Others, the judgment of the trial

Court was open to serious criticism. Horwill J. nonetheless set aside the order of remand and directed the lower appellate Court to dispose of the

appeal on its merits. He made the following observation :

It is not necessary in this case to go so far as to say that if the judgment of the trial Court is so completely incomprehensive as to be of no value at

all the appellate Court has no jurisdiction to order the trial Court to with another judgment; but the judgment in this case as already pointed out

does contain the findings on all the material questions of fact and law.

The judgment of the trial Court before me does not appear to be anything like as unsatisfactory as the one considered in that judgment and what is

also of more importance is that in that decision there was not as in the present case, a second remand with a permission to adduce further evidence

for the second time. The order of remand by the learned District Judge cannot possibly be permitted to stand and become the starting point of a

third cycle of litigation. I have no hesitation in setting it aside ''in toto'' including the finding on issue No, 2 which he has seen fit to confirm and I

direct the present District Judge of Coimbatore to hear and dis pose of the appeal finally and as expeditiously as possible afresh in accordance with

law. Costs of this appeal will abide the result and will be provided for in the ultimate decree to be passed.