ABDUL KARIM Vs. MAHMOOD ALI KHAN, AND ANOTHER

JUDGEMENT

(1.) This revision petition is against the order of remand made on 6-11-1956 in A.S. No. 24/4 of 1956 by the District Judge of Nalgonda and raises the question whether this remand is under the provisions of Order XLI or under Section 151 C.P.C. and whether it can be interfered with in revision by this Court.

(2.) The facts are : O. S. No, 1/1 of 1954 on the file of the Munsif's Court, Nalgonda, was filed against the present petitioner and the 1st respondent herein by the 2nd respondent for recovery of rent in respect of a malgi. The plaintiff averred that he let out the malgi to the 1st defendant (1st respondent) herein but after 10 months the 1st defendant sublet it to defendant No. 2 (Petitioner herein) and alleged that in any case the 1st defendant allowed the 2nd defendant to occupy the malgi. According to the plaintiff, no rents are due from 1st defendant for the period he had occupied. The 1st defendant also supported the case of the plaintiff in his written statement but the 2nd defendant denied that he was in occupation of the premises. But it: transpires that the eviction proceedings were successfully instituted by the plaintiff against the 2nd defendant. In the suit, the following issues were framed :

(3.) At the trial, the plaintiff produced no evidence to prove that the 2nd defendant was in possession of the Malgi as alleged by him and it is further found by the lower court that the plaintiff himself has deposed that defendant No. 1 is in possession nor is in arrears of rent. Thereafter the 2nd defendant let in evidence to prove his case. An attempt seems to have been made at this stage by the 1st defendant by filing an application to request the court to frame a fresh issue relating to the liability of each of the defendants but it appears that this application was dismissed on 7-11-1956 on the ground that defendant No, I had supported the claim of the plaintiff. The suit ended in a decree against the 1st defendant only and the 2nd defendant was awarded costs against the plaintiff. Against the judgment and decree of the trial court, A. S. No. 23/4 of 1956 was filed by the plaintiff only against the 2nd defendant. But the plaintiff made no attempt to question the judgment and decree of the lower court in so far as it dismissed the suit against the 2nd defendant but appealed against the allowing of costs in favour of the 2nd defendant. The 1st defendant also filed appeal No. 24/4 of 1956 against the plaintiff and 2nd defendant in which he contended that he is liable to the plaintiff for the sum sued as rent for the period of occupation by the 2nd defendant. As the plaintiff admitted the facts, the appeal A. S. No. 23/4 of 1956 filed by the plaintiff had been dismisses by the District Court on 31-10-1956 observing that the case against the 2nd defendant had been dismissed and naturally the plaintiff-appellant will have is pay the costs'. In this appeal, the learned District Judge refrained himself from getting into the merits of the case. In the appeal filed by the 1st defendant (appellant therein) before the District Court that inasmuch as his application to frame a fresh issue had been dismissed and he was given an opportunity to adduce evidence in rebuttal to that of the 2nd defendant and as this defendant was supporting the plaintiff fully in the claim made by the plaintiff even against himself, a remand of the suit for the fresh disposal after taking evidence is necessary. The learned District Judge agreed with this contention and framed the issue -