MANIK CHAND Vs. JIWANLAL

JUDGEMENT

(1.) THIS second appeal by the Defendant is directed against an order of remand passed by the first appellate court and arises out of a suit filed by the Respondents Plaintiffs on the basis of a 'Bahikhata' account which the Appellant Defendant did not admit to be genuine. There were six issues framed in this case by the trial court; and, on the ground that the Plaintiff had not been able to prove his dues against the Defendant, the suit was dismissed by the trial court. An appeal was filed to the District Judge Miorena, and the learned District Judge came to the conclusion that certain issues were wrongly framed and wrongly decided, that application for interrogatories was wrongly rejected and it should now be allowed, and, that material evidence in the case had not at all been considered by the trial court. After reframing certain issues and after issuing necessary directions for the trial court for a proper approach to the case, the learned District Judge remanded the case back for retrial allowing an opportunity to the parties to adduce fresh evidence if necessary. Against this order of remand, the Defendant has filed this second appeal.

(2.) A preliminary objection has been taken on behalf of the Respondents as to the competency of this appeal. It is urged on their behalf by Mr. Patankar that the order from which this appeal has been preferred is not one which comes within the purview of Order 41 Rule 23 of the Code of Civil Procedure and that therefore no appeal lies to this Court from that order. Strictly speaking, the objection taken on behalf of the Respondents is well founded, for the order does not in point of fact conform to the provisions of Order 41 Rule 23 which contemplates an order of remand being passed in a case in which the trial court disposed of a suit upon a preliminary point. Mr. Ramrup Tiwari, learned Counsel for the Appellant on the other hand, contends that the lower appellate court should have dealt with the appeal on merits and if it was of opinion that further evidence was necessary on any point, it should have acted under Order 41 Rule 25.

(3.) IF the Code recognises the power of an appellate court to direct a remand in circumstances other than those specified in Order 41 Rule 23, the question arises, whether an order passed by the appellate court in the exercise of its inherent jurisdiction is an appealable order?