KEWAL RAM Vs. MIHI LAL RAM KHILONI

JUDGEMENT

(1.) This is a plaintiff's revision under Section 115 C. P. C. against an order of the learned Civil Judge, Etah reversing the decree of the trial court and remanding the suit for retrial. The plaintiff Kewalram filed a suit against the defendant respondent Mihilal Ram Khiloni for the recovery of certain sums which were alleged to be due to him as losses incurred on behalf of the defendant in making certain Arhati transactions on behalf of the defendant. The plaintiff claimed to have acted as the defendant's agent. The defence was that the plaintiff had disobeyed the express instructions, which, if carried out, would not have resulted in the alleged losses. According to the defendant, the market was falling and the plaintiff sold the stock of sugar which was the subject matter of Arhati transactions after wilful delay and had to thank himself for the losses. The plaintiff denied that he received any such instructions to unload the stock without delay and pleaded that he had, on the contrary, received some other instructions from the defendant during a personal visit. These instructions were alleged to have been given by the defendant orally. The trial court believed the defendant's case and dismissed the plaintiff's suit. On appeal the learned Judge observed that the trial court had taken into consideration a personal diary of the defendant which purported to show that he was not present in the plaintiff's town on the date when he is alleged to have given the oral instructions set up by the plaintiff. But it was noted that this diary, though purporting to have been written by the defendant in the ordinary course of his business and therefore relevant, had not been proved according to law. Holding that the diary amounted to a vital piece of evidence, he took the view that an opportunity should be given to the defendant to prove the diary and to the plaintiff to cross-examine the defendant and" lead evidence in rebuttal. He, therefore, allowed? the appeal and remanded the case to the trial court for a rehearing. Against this decision the plaintiff has come to this Court in revision.

(2.) Mr. B. R. Avasthi, on behalf of the defendant-respondent raises a preliminary objection that no revision under Section 115 C. P. C. can be entertained against this order. He contends that the appellate court which had inherent power to remand the case, has done so in the exercise of this power. He argued that this Court cannot interfere with the exercise of this discretion even if it holds that it was wrongly exercised.

(3.) Mr. K. G. Saksena, on behalf of the plaintiff-appellant contends, On the other hand, that the order of remand was without jurisdiction. According to him, the appellate court has no inherent power to remand a case except to the limited extent permitted by Order 41 Rule 23 C. P. C. Mr. Saksena, however, conceded that there was no direct authority of this Court in which it has been held that there is no inherent power of remand, but he pointed out that there is also no reported decision that such a power exists. There is no direct decision of this Court on this point. After hearing learned counsel on both sides, I am of the opinion that the appellate court has an inherent power to remand a case. This view derives indirect support from the language of Section 99 of the Code which provides that no decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on ao count of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court. This section contains a warning to the appellate court not to exercise its powers of remand on account of any misjoinder of parties or causes of action or any other error, defect or irregularity in the trial of the suit. This prohibition would have been unnecessary unless the legislature thought that the Court has an inherent power of remand which had to be curbed. The words of Order 4l Rule 23 of the Code, as amended by this Court, also suggest that the Court has an inherent power of remand. The relevant part of this rule provides :