BRIJLAL Vs. TIKHU

JUDGEMENT

(1.) This was, originally, filed as a First Appeal from an order of remand under Order 43, Rule 1(u), Civil P.C. For reasons stated in this Court's order dated 11-1-1955, however, I held, that the order of remand was not under Order 41, Rule 23, but under Section 151, Civil P. C., and consequently, no appeal lay. At the request of the appellants' counsel, the memorandum of appeal was treated as a revision petition and admitted on the point that the order of remand did not conform to law.

(2.) To-day. I have heard learned counsel for the parties. This matter had come up before this Court on two earlier occasions. When it was last heard by this Court on 3-4-1954, I had directed the learned District Judge to rehear the appeal after shaking off the impression that there had been any finding regarding custom by, my learned predecessor in his order dated 2-1-1952. Towards the end of my order, I had observed:-

(3.) When the appeal went back to the learned District Judge (Mr. J. P. Thakore), he felt that it was necessary to examine the parties in respect of the allegations made in paras 2 and 4 of the plaint and to grant the parties an opportunity to lead evidence on issue No. 8. Having come so far, the District Judge then passed an order remanding the case to the trial Court with directions to examine the parties on paras 2 and 4 of the plaint, if necessary, to let the pleadings be amended on the strength of those statements, to recast issue No. 8, if need be, and then allow the parties an opportunity to lead evidence on the issue as recast and, finally, decide the suit afresh. Learned counsel for the petitioners contended that there was no justification for permitting the plaintiffs to set up a new case. Mr. Anand for the respondents, on the other hand, urged that the pleadings were already there and it was only a question of interpreting them correctly.