M. KESHAVA KAMATH Vs. C. ABDUL SUKOOR

JUDGEMENT

(1.) I have no doubt that the remand order which is challenged before me was a misfortune to the appellant and to the respondent in that nothing was gained except a postponement of the decision. The facts of the case really bring home the point that it is often times more advantageous to take a small step in time rather than refuse to do it and produce a protraction of litigation putting parties to expense and delay.

(2.) The plaintiff who is the appellant before me brought a suit for recovery of the balance amount of Rs. 694.91 out of a loan of Rs. 2250/- alleged to have been taken by the defendant from him. The defendant contested the suit denying the loan itself. Evidence, documentary and oral, was recorded at length and the learned Munsiff posted the case for arguments to 22-9-1967. At the time the case was called up for hearing, advocates on both sides were engaged in the Sub Court and being in the middle of that case; neither could reach the Munsiff's Court in time. After waiting for 10 minutes and finding the advocates absent, the learned Munsiff posted the suit for judgment to 25-9-1967. On 23-9-1967 the plaintiff filed an application for reopening the case and hearing arguments on the ground that his advocate had been engaged in the Sub Court at the time the suit was taken up, even like the advocate for the opposite party. Both the advocates on finishing the case in the Sub Court "rushed up" to the Munsiff's Court to find that the suit had already been posted for judgment. Since the case involved "several important points" the plaintiff pleaded that he would be prejudiced if his counsel were not heard. The respondent, in his counter affidavit, stated that he had no objection to the reopening of the case. Indeed he has repeated the same facts in paragraph 2 of the memorandum of his appeal to the Sub Court. The learned Munsiff, however, dismissed that petition for reopening the case and proceeded to judgment on 25-9-1967, the appointed date. He decreed the suit and the defendant filed an appeal to the Sub Court, Kasaragod. The Subordinate Judge, being satisfied that what the learned Munsiff did was not quite just and taking the view that he should have given an opportunity to the advocates to address their arguments set aside the decree and remanded the suit to be disposed of according to law after hearing both sides or at least giving a substantial opportunity of hearing to both sides. It is this order of remand which has been challenged before me.

(3.) I agree with the learned Subordinate Judge that the learned Munsiff, when moved to reopen the case, should not have been overstrict and should have acceded to the request by advocates on both sides. It must be remembered and recognised that assistance of counsel is valuable and a judgment produced after hearing arguments of counsel on both sides will, ordinarily, be more comprehensive and better, shall I say, than one delivered unaided by such arguments. If we accept the position that the bar performs an extremely significant service in the administration of justice some marginal accommodation is desirable and should we not offer more than verbal reverence to the flattering statement that the Bench and the bar are but two limbs of an integrated administration of justice? While it is true that the absence of advocates on both sides left the Court with no option but to post it for judgment, when both parties, through their counsel the plaintiff had made an application also in that behalf requested that the case may be reopened and arguments heard, it should have been allowed. If that had been done, the remand order could have been avoided and this Civil Miscellaneous Appeal would also not have arisen. Anyway, we are concerned with a slightly different point now because the Munsiff not having had the benefit of the arguments of the advocates on both sides proceeded to judgment, which was challenged in appeal by the defendant. However, if the Subordinate Judge were satisfied that a reasonable opportunity should have been accorded to both sides by the lower court and had not been so accorded, should he invariably remand the case or could he repair the injury by hearing the case fully? After all, his is an appellate Court competent to go into all questions of fact and law. Even the High Court u/s 103 C.P.C. may if the conditions set out in that Section are satisfied, determine an issue of fact necessary for the disposal of the appeal. The court of first appeal a fortiori has that power and indeed, the obligation. I, therefore, think that merely because the trial court had wrongly declined to reopen the case and hear the arguments it does not follow that the decree should have been set aside and the suit remanded for fresh disposal. This would only lead to further expense and delay. On the other hand, the appellate Court should have heard the arguments in extenso and disposed of the case. Failure to do so was, in my opinion, wrong. Even where the judgment of the lower court involves misconception, misreading of evidence, or ignoring important evidence bearing on the question to be decided or is otherwise contrary to law, a remand "for writing a more satisfactory judgment" should not be made (See AIR 1969 Notes of Supreme Court cases 12) This principle would apply all the more in the present case. I am inclined, therefore, to allow this Civil Miscellaneous Appeal and set aside the order of remand.