RATTAN SINGH Vs. SARDOOL

JUDGEMENT

(1.) This was filed as an appeal under Order 43, Rule 1 (u), C. P. Code, against the order of, the learned District Judge, Mandi, remanding the case for retrial by the Subordinate Judge of Mandi. From a perusal of the judgment of the lower appellate Court, however, it is clear that the remand was not made under Order 41, Rule 23. On the other hand, the learned District Judge has made it clear that the remand was under Section 151, Civil P. C. Plainly, therefore, the appeal does not lie. Learned counsel for the appellant, while conceding that the appeal is not maintainable, prayed that, in the alternative, it may be treated as a revision. His argument was that the remand was unnecessary and the learned District Judge has not exercised his jurisdiction properly. He elaborated this argument by pointing out that there was no issue regarding limitation and the grounds of appeal, taken before the lower appellate Court, were silent regarding limitation. Learned counsel argued that it was open to the learned District Judge to remit an issue to the trial Court under Order 41, Rule 25. He contended that, as a result of the remand order, the respondents would be in a positin to fill gaps in their evidence.

(2.) A perusal of the judgment of the learned District Judge, however, shows that in his opinion, the point of limitation was an important one and he was at a loss to understand why no issue had been framed on that point. He further found that the judgment of the Subordinate Judge was a sketchy one and no finding was given on issue No. 3. The following passages from the judgment of the District Judge are significant:

(3.) It is obvious from the above that in the opinion of the learned District Judge the matter could not have been set right by remitting an issue under Order 41, Rule 25. If issues had to be so remitted, issues covering the entire ground would have to be remitted, which means, in other words, that the suit would have to be tried de novo. It is for these reasons that the District Judge directed the trial Court to try the case all over again after framing all issues that arose in the case. Sitting as a Court of Revision, I fail to see how it can be said, with justification, that the learned District Judge has exercised his discretion improperly. Under paragraph 35 of the Himachal Pra-desh (Courts) Order, I can interfere in revision only if I come to the conclusion that the District Judge has exercised his jurisdiction with material irregularity. In the light of what has been said above, I am unable to say that there has been any material irregularity in the exercise of jurisdiction by the District Judge.