MADHAVAN PILLAI Vs. EBRAHIM

JUDGEMENT

(1.) I see no ground for review. The only ground urged is that there is an error apparent on the face of the record in that, in allowing an appeal from an order of remand, I determined the suit finally by dismissing it. It is said that that is illegal and beyond my powers and that I should have been content with remanding the case to the lower appellate court for decision on the merits. I do not agree. What happened was this. The first court dismissed the petitioner plaintiff's suit for a declaration of title and for possession on the finding that the plaintiff had no title. In appeal this finding was set aside and the suit remanded; and the appeal against the order of remand was brought on the ground that the decision of the lower appellate court on the issue of title was erroneous. Obviously I was called upon to decide the issue of title and I decided it against the plaintiff. That was enough to dispose of the suit finally; nothing else had to be determined; no purpose whatsoever would have been served by remanding the case to the lower appellate court since the only issue to be determined had been determined by me; and the logical result of a dismissal was, I am sure, within my powers.

(2.) Under S.107 of the Code the appellate court has, subject to such conditions and limitations as may be prescribed, the power to determine a case finally, and the case in an appeal from an order remanding a suit is the suit itself, nothing less. There is nothing in O.43 R.1(u), which provides for an appeal from an order under O.41 R.23 remanding a case, which confines the power of the appellate court to setting aside the order of remand and precludes it from determining the case finally if, on its findings, that can be done. Nor can I discover any such limitation in S.105(2). Jainul Abideen v. Habibulla [ AIR 1928 Mad. 430 ] on which reliance is placed by the petitioner was decided at a time when an order of remand was permissible only when the Trial Court had disposed of the suit upon a preliminary point and while it was held that the scope of the appeal was confined to the question of the correctness of the order of remand which could "be impeached either on the ground that the remand itself was illegal as the decision of the first court was not on a preliminary point or on the ground that the decision of the preliminary point by the appellate court is erroneous", it was not said that the court hearing the appeal from the order of remand could not finally determine the case if that could be done on its finding On the preliminary point which it is obviously its duty to decide. All that was held was that issues other than the preliminary issue could not be heard and determined; and even that limitation might not apply when, as in this case, the suit was not disposed of by the Trial Court on a preliminary point. All issues necessary for deciding whether the order of remand was proper or not, can, indeed must be, heard and determined, and, if as a result of such determination, the suit itself can be finally determined, no further determination by the lower appellate court being necessary, then the proper course, I should think, would be to determine the suit finally. I see nothing in Sohan Lal v. Aziz-un-Nissa Begam (ILR VII Allahabad 136) or in Mt. Lachmin v. Bhairon Baksh Singh (AIR 1940 Oudh 367) to the contrary.

(3.) I dismiss the petition.