MOHD YUSUF Vs. JAMAL BABA

JUDGEMENT

(1.) MOHD . Yusuf and others brought a suit for possession of certain immovable property against Jamal flaba and others. The suit was dismissed by the trial court of Senior Subordinate Judge, Srinagar. On appeal the District Judge found that the trial court had decided the case on insufficient material. Therefore the decree passed by the trial court dismissing the suit was set aside and the case was remanded to the trial court with the discretion that it shall frame fresh issues and allow the parties to adduce fresh evidence in regard to the issues raised and dispose of the case according to law. No directions were given by the lower appellate court in regard to the refund of Court -fees. The plaintiffs made an application before the lower appellate court under section 151 of the Civil Procedure Code read with section 13 of the Court Fees Act for the refund of the Court -fees. That application was dismissed on flimsy grounds.

(2.) THE plaintiffs have come up in revision to this court and it is argued that as the suit was remanded to the trial court for fresh trial the court -fees should have been refunded. Strictly speaking this remand order does not come within the purview of O. 41, R. 23 of the Civil Procedure Code. It is a remand order made by the lower appellate court under its inherent powers. I have gone through the order passed by the District Judge and I find that the District Judge has come to the conclusion that the suit was decided on insufficient material before the trial court. It has been held in 1939 Lahore 257 :

(3.) WHERE there has been no real trial of the main issues involved in the case in both the courts below, the appellant is entitled to refund of court -fee paid by him in the lower appellate court in memorandum of appeal . In this case also, as held by the District Judge, issue No. 1 was not property decided by the trial court and the caste was remanded to it for fresh trial. In my opinion the District Judge should have ordered the refund of the court -fees to the plaintiff appellant.