Lochan Rai and Others vs Lala Sant Prasad

Dawson Miller, C.J.—I very much regret that, in my opinion, these appeals will have to be remanded for decision by the lower Appellate Court. The only points in dispute were as to the rate of Nagdi rent and the landlord''s share of the produce in the Bhowli rent. The landlord was claiming Rs. 2 8-6 as Nagdi rent whilst the tenants were asserting that the rent was Rs. 2 1-9. The landlord was claiming Bhowli rent in certain proportions whilst the tenants were asserting different proportions.

The learned Munsif allowed the plaintiff''s claim in the manner asserted by him except that, in making a calculation of the average produce of paddy, be arrived at it as 10 maunds per bigha, whereas in fact it ought to have been 14 maunds per bigha.

The tenants appealed to the Subordinate Judge. The Subordinate Judge allowed the appeal and also allowed the cross objection of the landlord who contended that a miscalculation had been made by the Munsif in arriving at the average produce of the paddy, so that both appeals were allowed.

The landlord appealed to this Court from the decision of the Subordinate Judge in so far as it allowed the tenants'' appeal. The appeal name before Mr. Justice Ross. The points taken in appeal by the tenants were that the learned Subordinate Judge had, for improper reasons, rejected the evidence of the village papers as well as the report of the Assistant Settlement Officer, and had improperly relied upon the non-production of certain village papers relating to the land in question at an earlier period when it was under Musammat Jaipati Kuer.

The learned Judge of this Court found, and we agree with him, that the Subordinate Judge was wrong in rejecting the village papers and in rejecting the Assistant Settlement Officer''s report, and to that extent we entirely agree with his decision. We also think that the learned Judge of this Court was right in pointing out that the Subordinate Judge was in error in drawing any inference from the fact that earlier village papers had not been produced when the defendants held under Musammat Jaipati Kuer because at that time their holdings were not the same and the rent was entirely different, The learned Judge, however, having arrived at the conclusion that certain evidence had been improperly rejected seems to have considered that if that evidence were admitted it disposed of the whole case. In my opinion it was clearly not for this Court, sitting in second appeal, even if it thought that certain evidence had been improperly rejected by the lower Court, to weigh that evidence as against the evidence on the other side and arrive at a conclusion of fact upon the matter. There may be certain cases in which the matter is so clear that the Appellate Court it driven to the conclusion that no Court acting reasonably could come to any conclusion but one, and in such cases it may be that the Appellate Court in second appeal would be entitled to decide the case without putting the parties to the trouble and expenses of having the question determined by the lower Appellate Court; but in the present case there undoubtedly was evidence on both sides as to the rate of rent both Nagdi and Bhowli. There was, on the one hand, the Record of Rights and there was tone evidence given by the only witness called for the defendants which supported'' the Record of Rights. There was, on the other hand, the evidence which has been rejected by the Subordinate Judge, and it seems to me that the only possible course in this case is to remand the case to the lower Appellate Court to come to a conclusion of fact after considering not only the evidence which it has accepted (excluding the earlier village papers) but the evidence which Mr. Justice Ross found it had improperly rejected. Had we to determine this case for ourselves it might be an easy matter for us to arrive at a conclusion, but, as I have already said the determination of questions of fact in second appeal not coming u/s 103 of the CPC which is applicable in this case are not for the second Appellate Court. I, therefore, consider that the judgment of Mr. Justice Ross appealed from should be set aside and the case should be remanded to the lower Appellate Court for determining the issues of fact upon the evidence, including that which we have held was properly admissible in the case.

The decision of the Subordinate Judge in so far as it found that the average produce of the paddy was 14 maund per bigha and 10 maunds per bigha, will remain. There is no appeal upon that question, but so far as the rest of his decision is concerned that will be set aside. The result, therefore is that the judgment and decree of the learned Subordinate Judge are modified as stated, and the case is remanded for decision on the facts in so far as the decree of the Subordinate Judge has been set aside. I think, in the circumstances, the costs of this appeal will abide the result of the final determination of the case.

Jwala Prasad, J.

I agree with the order proposed. I am not sure, however, whether in this case we could'' not determine the appeal without remanding the case. The question is, how are we to deal with this appeal. Are we debarred from dealing with the case on merits and disposing of it instead of remanding it?

Order XLII, Rule 1, of the CPC says that the rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees. Order XLI, Rules 23 and 25, lay down the circumstances under which a remand can be made. Under Rule 23 a remand is allowed when a suit is disposed of by the lower Court upon a preliminary point and the decree is reversed in appeal. Under that rule the Court to which the case is remanded is directed to determine certain issues left Undetermined on account of the disposal of the case up in a preliminary point. Under Rule 25 the remand is made when the Court trying the suit omits to frame or try any issue or to determine any question of fact which appears to the Appellate Court essential to the right decision of the suit upon the merits. In the present case none of these contingencies has arisen for a remand either under Rule 28 or under Rule 25. Rule 24 empowers the Appellate Court to pronounce judgment where the evidence upon the record is sufficient and finally determine the suit notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly Upon some ground other than that on which the Appellate Court proceeds. Generally speaking, the present case will come under Rule 24, that is to say, this Court will have power to dispose of this appeal finally upon the evidence on the record. I do not find anywhere in the Code any indication that in second appeal the Appellate Court''s power under Rule 24 has been curtailed On the other hand, Order XLII makes this rule applicable to second appeals. No doubt, u/s 100, read with Section 101, no appeal shall lie to the High Court from a decree passed in appeal from any Court subordinate to it except upon the ground mentioned therein, vis.,

(a) the decision being contrary to law or to some usage having the force of law;

(b) the decision having failed to determine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure provided by the Code or by any other law for the time being in force, which may possibly have produced error or defeat in the decision of the case upon the merits.

A second appeal to this Court did lie in this case and, as a matter of fact, we have decided that the judgment of the lower Appellate Court was illegal inasmuch as it exercised its jurisdiction irregularly in not having considered certain evidence upon the record. We are going to set aside the judgment and, therefore, the appeal to this Court was properly "laid." When once an appeal has been properly laid, then the ordinary rules under Orders XLI and XLII will apply for the disposal of that appeal. We can remand the case under Rule 23 or 25 or we can determine the case finally upon the evidence under Rule 24. True, no second appeal can lie upon facts, but when once an appeal is properly preferred and is entertained by this Court and the find ling of fact of the lower Appellate Court if set aside and the evidence on the record is sufficient, then there is nothing to prevent the Court from going into the evidence and determining the case finally under Rule 24, It has been recognised that the Appellate Court has power to remand also irrespective of Rules 23 and 25 of Order XLI. I do not dispute that, and perhaps the present order of remand, though not coming under Rule 23 and 25, may come under the general powers of this Court to remand the case, but I do not admit that this Court has no power to determine the case finally upon the merits and on consideration of the evidence under Rule 24 of Order XLI.

I may add that Section 103, which has now been added to the Code of 1908, has widened the power of the Appellate Court to go into evidence and determine any issue not determined by the Court below. This was in order to settle a conflict of decisions prior to 1907 as to whether the High Court could at all go into questions of fact and determine an appeal on evidence: Vide Girdhari Lal v. Crawford 9 A. 147: (1886) A.W.N. 325 : 5 Ind. Dec. (N.S.) 531 (F.B.). Deokishen v. Bansi 8 A. 172 : (1886) A.W.N. 35 : 4 Ind. Dec. (N.S.) 1134 (F.B.) and Bal Kishen v. Jasoda Kuar 7 A. 765 : (1885) A.W.N. 225 : 4 Ind. Dec. (N.S.) 908 (F.B.), In the case of Seturatnam Aiyar v. Venkatachala Gounden 56 Ind. Cas. 117 : 43 M. 567 : (1920) M.W.N. 61 : 27 M.L.T. 102 : 11 L.W. 399 : 38 M.L.J. 476 : 22 Bom. L.R. 578 : 18 A.L.J. 707 : 47 I.A. 76 : 25 C.W.N. 485 (P.C.) their Lordships of the Privy Council held that the High Court in second appeal had jurisdiction to deal with the case and to decide the issues upon the materials before the Court when the District Judge returned his finding without dealing with those materials in a satisfactory manner. In the case of Damusa v. Abdul Samad 51 Ind. Cas 177 : 47 C. 107 : 17 A.L.J. 700 : 15 N.L.R. 97 : 37 M.L.J. 36 : (1919) M.W.N. 505 : 21 Bom. L.R. 920 : 10 L.W. 310 : 24 C.W.N. 81 : 46 I.A. 140 (P.C.) their Lordships of the Privy Council held that the Judicial Commissioner had in second appeal on terms of Section 100 of the Code (1908) power to decide what was the real question in the case notwithstanding that an issue had not been framed on it.

While I agree that a finding of fact of a lower Appellate Court is conclusive in second appeal, there is nothing to prevent the High Court from going into the evidence on the record and deciding any issue whether actually raised or not in the Court below, if the finding of fact is set aside on the grounds mentioned in Section 100 of the Code. In the present case the evidence on the record is sufficient and almost all of them appear to have been dealt with by the Munsif. The remand is only for the purpose of the lower Appellate Court to record its finding upon the evidence on the record. This could be done by us here without much loss of time. The remand could, therefore, have been obviated.

However, as my Lord the Chief Justice is of opinion that the case should be remanded, I subscribe to it.