AHAMED ROWTHER Vs. BATHUMAL BEEVI AND ANR.

JUDGEMENT

(1.) THIS appeal is against an order of remand passed by the Subordinate Judge of Sivaganga in A.S. No. 69 of 1955. The defendants were the appellants before the Subordinate Judge. They had appealed against a decree of the District Munsif who decreed redemption of an othi deed, dated 5th January, 1939, by one Sulaika Beevi to the first defendant. A gift by Sulaika Beevi was relied on by the defendant, as also a release by a son of Sulaika Beevi. Both these documents were produced before the District Munsif. But, as they were unstamped, the District Munsif insisted upon payment of stamp duty and penalty. Obviously, the appellants were not able to pay it within the time allowed by the District Munsif, and further time asked for was refused. But the District Munsif rendered a judgment on the merits after discussing the evidence. The appellants, after filing the appeal, filed I.A. No. 89 of 1956 under Order 41, Rule 27 , for receiving additional evidence in appeal. The additional evidence tendered was the two documents in question, as also some kist receipts. The learned Subordinate Judge thought that these documents were material. At once, he came to the conclusion that the whole appeal should be remanded and there should be a fresh hearing. He obviously forgot that his powers of remand under Order 41, Rules 23 and 25, do not permit him to send the suit back for retrial merely on the ground that reception of additional evidence is necessary. Order 41, Rule 25, specifically provides for an Appellate Court directing the trial Court to take additional evidence required and to return the evidence to the Appellate Court together with its findings if any findings are necessary. Rule 23 of Order 41 refers to a case of remand where a decree is reversed in appeal and such decree was based upon a preliminary point. This is not such a case. The learned Subordinate Judge was therefore not justified in passing an order of remand even if he was satisfied that additional evidence was necessary.

(2.) THIS appeal is allowed. The order of remand is set aside and the appeal will be restored to the file of the Subordinate Judge and will be heard by the present Subordinate Judge. It should not be taken that I have expressed any opinion on the merits of the application for receiving additional evidence. It will be open to the new Judge to form his own conclusion upon the merits of that application after hearing the parties. There will be no order as to costs.