S. VENKATARAMA AYYAR Vs. UNNAMALAI AMMAL AND ANR.

JUDGEMENT

(1.) THE point raised in this appeal is covered by an exhaustive & illuminating judgment of our learned brother Viswanatha Sastri, J. reported in 'Kanakayya v. : AIR1951Mad218 , in which he held that notwithstanding the fact that after an order of remand the suit was disposed of, the party aggrieved by the order of remand would have a right of appeal, differing from the judgment of Mack, J. in 'Venkatrama Aiyar v. : (1948)2MLJ404 . The view of Mack, J. is that an appeal against an order of remand is incompetent if the suit is disposed of after remand. He dismissed 'C. M. A. No. 508 of 1946' and this Letters Patent Appeal is against that decision. We do not think it necessary to traverse the same ground which was covered by our learned brother, Viswanatha Sastri J. for holding that the view taken by Mack J. in 'Venkatrama Aiyar v. : (1948)2MLJ404 , is wrong. We cannot usefully add to the reasoning of the learned Judge, Viswanatha Sastri J., & we entirely agree with his reasoning & his conclusion that the view taken by Mack J. in 'Venkatrama Aiyar v. : (1948)2MLJ404 , is wrong. We therefore think that the decision in 'Venkatrama Aiyar v. : (1948)2MLJ404 , does not lay down the law correctly & must be overd.

(2.) THE learned counsel for the first resp. when asked whether he was in a position to distinguish the case disposed of by Viswanatha Sastri J. from the present case attempted to argue that the order of remand was necessitated, because the present applt. wanted an indulgence from the lower Ct. This does not seem to be correct, as it is evident from the judgment of the learned Dist. J. that it was the first resp., who was the applt. before him, that raised a new question of law which necessitated an investigation into facts, & the present applt. who was the first resp. there requested that if the point were to be allowed to be raised at the stage of the appeal he should be given an opportunity to adduce evidence, as the matter could not be disposed of without trial. It was from this point of view that the learned Dist. J. framed two issues, & remitted the ease to the learned Dist. J. with liberty to the parties to adduce fresh evidence. The contention therefore that the applt. elected in favour of an order of remand & therefore is precluded by some principle of estoppel cannot be accepted, even if otherwise tenable.