SANTOSHINI BOSE TRUSTEE Vs. SHIB SANKAR DAS

JUDGEMENT

(1.) A preliminary objection has been taken by Mr. Bhattacharjee that the revisional application is not maintainable because the only course open to the petitioner was to prefer an appeal.

(2.) The learned Advocate appearing on behalf of the petitioner has referred to the cases of S. S. Khanna v. F. J. Dillon and Sanatan v. Hakim in. It has been contended that the plaintiff prayed for eviction on various grounds and many issues were framed. The learned Appellate Court reversed the findings only on two points, viz., the alleged requirement of the plaintiff and on the question whether the roof of the house was damaged by affixing the antenna for the T. V. The other points have not been reversed The order of remand has been made by the appellate Court only on these two points. So, there will be no de novo trial. According to the provisions of Rule 23A of Order 41 of the Civil P. C. there will be a retrial only when there is an order for de novo trial and not when the appellate court gives direction to hear the case only on certain points. It has thus been contended that in the eye of law there will be no retrial or de novo trial and hence only a revision lies and the order in question is not appealable.

(3.) Rule 23 of Order 41 of the Code does not apply because the case has not disposed of the matter on a preliminary point. Rule 23A says that where the court from whose decree an appeal is preferred has disposed of the case otherwise on a preliminary point and the decree is reversed in appeal and retrial is considered necessary, the appellate court shall have the same powers as is mentioned in Rule 23. Clause (u) of Rule 1 of Order 43 of the Code says that an appeal shall lie from an order under Rule 23 or 23A of Order 41 of the Code remanding a case, where an appeal would lie from the decree of the appellate court.