HOLARAM Vs. N.K. PANDE

JUDGEMENT

(1.) IN the respondent's suit, the trial Court had fixed 30 March 1963 "for filing written statement and issues' (vide order dated 25 February 1963). On that date (30 March) which was the first date of hearing, the defendant did not appear. The trial Court proceeded ex -parte, recorded the statement of the, plaintiff and reserved its judgment. Thereafter the defendant appeared and made an application for setting aside the ex -parte order. It was allowed and the ex -parte order was set aside. The parties then went to trial. Issues were framed. Evidence of the parties was recorded. Ultimately, by its judgment the trial Court dismissed the suit. From that judgment and decree, the plaintiff appealed. The learned District Judge allowed the appeal on the ground that the trial Court's order setting aside the ex -parte order was wrong. In the result, he ordered remand and directed the trial Court for a fresh judgment on the sale basis of the plaint and the plaintiff's deposition which was recorded ex -parte. Aggrieved by that order, the defendant has come up in revision. There cannot be the slightest doubt that the order of the appellate Court must be set aside.

(2.) SHRI Shukla, learned counsel for the plaintiff, raises a preliminary objection. It is contended that the remand order passed by the District Judge is appealable. There is no substance in the objection. The only remand order from which an appeal lies is the one which falls within the purview of Order 41, Rule 23, Civil Procedure Code, i.e., where the judgment of the trial Court is on a preliminary point. Since to no other remand order, Order 43 Rule 1 (u) applies and there is no other provision for an appeal from other remand orders, the only remedy is by way of revision. In the present case, the judgment of the trial Court was based on the determination of all the issues and not on a preliminary point. This revision is, therefore, competent. The preliminary objection is rejected.

(3.) MOREOVER , the plaintiff, having participated in the trial and having fought the suit on merits and having suffered judgment against himself, could not be heard in the appellate Court to say that the trial Court was bound to decide the suit solely on his statement which was recorded ex -parte on the 30th March.