KAMLA PRASAD SAHU Vs. NAWAL KISHORE PRASAD SAHU

JUDGEMENT

(1.) This appeal is presented by the plaintiff against an order of Babu Dwarika Prashad, Additional Subordinate Judge of Darbhanga, remanding a money suit, for retrial to the court of the Munsif of Madhubani. The suit was based on a promissory note for Rs. 1,600 executed by the defendant on April 25, 1928. The plaintiff admitted having received payment of Rs. 1,000 on July 30, 1929, as endorsed on the promissory note and has sued for the balance of principal and interest, the total claim being Rs. 74-5-0. The defence was that the defendant did not borrow from the plaintiff but had borrowed from the firm of Gokhul Panjiar- Mathura Panjiar, that it was to this firm that the defendant owed the money and that he had a claim against this firm for Rs. 577 on another account. He claimed that this sum should be credited in his favour as against the debt in suit. The Munsif thought that the plaintiff was holder of the promise sorry note on his own account and not on account of the firm Gokhul Panjiar-Mathura-Panjiar and that defendant could not claim any set off in respect of money due to him from the firm. He accordingly decreed the suit. The Subordinate Judge who heard the appeal was of opinion that the plaintiff it a farjidar of the firm of Gokhul Panjiar- Mathura Panjiar and thought that the Munsif had acted erroneously in not entertaining and examining the claim to set off, He thought that the legal objections on which the Munsif had rejected that claim at the outset without going into the question on evidence were not sound and the question should not be gone into between the parties to the suit. As a result of this he set aside the judgment and decree of the lower Court and remanded the suit for a decision on the defendant's plea of discharge of Rs. 577 only, directing the lower Court to make a decree after determining the question of discharge. He also said that it should be open to the plaintiff to get the plaint amended in order to add the firm as a party to the suit: hence this appeal in which the first ground taken is that the order of remand is wrong in law.

(2.) A preliminary objection is taken that the order of remand is not appealable. Order XLIIT, Rule 1 (u), Civil Procedure Code, gives a right of appeal against an order of remand made under Order XLI, Rule 23. On the other hand an order of remand under Order XLI, Rule 25 is not appealable. This order of remand is certainly not under Order XLI, Rule 25. It does not necessarily follow that it is under Order XLI, Rule 23, for as pointed out in Raghunandan Singh V/s. Jadunandan Singh 43 Ind. Cas. 959 : A.I.R. 1918 Pat. 505 : 3 Pat. L.J. 253 : 4 P.L.W. 450 and other cases, there may be remand orders passed under the inherent powers of the Court and not under either of the two rules I have cited; and for the respondent it is contended that this is one of such cases. In my opinion this is not so. The remand order falls under Order XLI, Rule 23 and is an appealable order. It is in my opinion a thoroughly improper order and one which the Subordinate Judge ought not to have made. The Appellate Courts in the mofussil ought to bear in mind what has been pointed out in many decisions that they ought not rashly and without sufficient cause to set aside a decree of the first Court and order a retrial in any case in which this can possibly be avoided. In other words, they should never do so in any case in which it is possible to deal with the matter effectively under Order XLI, Rule 25. I have no doubt that in this case the proper course was if the Subordinate Judge required a finding on the question on which he has called for a finding to refer the issue to the first Court for trial under Order XLI, Rule 25. I find it necessary therefore to set aside the judgment and order of the Subordinate Judge and direct that in lieu thereof it is ordered that the Munsif do under Order XLI, Rule 25, proceed to determine the question of discharge in respect of the sum of Rs. 577 only. The parties will be allowed to adduce evidence on the point of discharge. The Munsif will return the evidence and findings to the lower Appellate Court as provided under Order XLI, Rule 25 and the lower Appellate Court will then proceed to the disposal of the appeal according to law.

(3.) At the hearing of this appeal, the appellant wished to challenge the view of the Subordinate Judge that the plaintiff was a farjidar for the firm of Gokhul Panjiar- Mathura Panjiar and that this allegation could be gone into in a suit on a hand note. In this appeal which succeeds on the question of procedure and is not an appeal from a final decree, I am not in a position to deal with the contention. All that I need say at present is that the judgment of the Subordinate Judge having been set aside, the entire appeal will be open for decision by him or his successor when the evidence and findings of the Munsif are received. The costs of the appeal here will abide the result.