Mallikarjuna and Others vs Pathaneni

We are of opinion that the order of remand was ultra vires and illegal, since the District Munsif had decided the case on the merits, not on a

preliminary point. The proper course was for the District Judge to have himself admitted Exhibit B and to have considered its effect along with the

other evidence in the case and to have then arrived at findings on the material issues. If further evidence was required, he might have called on the

District Munsif to record it and certify it, or he might have himself admitted it, and he might then have considered it also before arriving at a finding

on the issues. Subba Sastri v. Balachandra Sastri ILR 18 Mad. 421.

We have considered how far the provisions of Section 578, Civil Procedure Code, should effect our procedure in this case. If we were satisfied

that the District Judge did himself consider the evidence and did himself arrive at findings thereon, we should be inclined to hold that, u/s 578, Civil

Procedure Code, the order of remand and the call for revised findings was merely an irregularity of procedure not affecting the merits and not,

therefore, such as to require or to justify us in now remanding the case.

We, however, observe that in the present case the District Judge does not appear to have brought his mind to bear on the question whether the

evidence did or did not justify the findings. He did not even state that he accepted them. He merely observed that no objection was taken to them,

and that on those findings the decree of the lower Court must be reversed. It may, perhaps, be that, if the District Judge had himself considered the

evidence, he would have arrived at a different conclusion.

The irregularity was, therefore, one which may perhaps have affected the merits of the case.

This being so, we shall follow the procedure adopted in the authority already referred to, and setting aside the decree of the District Judge, we

remand the suit to him for disposal according to law.

Costs of this appeal will abide and follow the result.