VENKATA RADHAKRISHNA RAO Vs. VENKATA RAO

JUDGEMENT

(1.) Mr. Rajah Ayyar for respondents raises a preliminary point that no appeal lies.

(2.) The first Court heard and decided the case before it fully on all issues. The lower Appellate Court permitted the plaint to be amended before it and remanded the case for trial on the amended plaint to the first Court. This order of remand clearly cannot be brought within Order XLI, Rule 23, Civil Procedure Code, even at its widest interpretation as laid down by the Full Bench in Raman Nayar v. Krishnan Nambudripad (1922) I.L.R., 45 Mad., 900 (F.B.). Nevertheless the only course open to an Appellate Court which permits before it an amendment of the plaint is to remand the case for trial to the first Court (vide Uzir Ali Sardar V/s. Savai Behara (1916) I.L.R., 43 Calc., 938 and Narottam Rajaram V/s. Mohanlal Kahandas (1913) I.L.R., 37 Bom., 289. Here then we are confronted with a legal order of remand which does not come within the purview of Order XLI, Rule 23, and cannot therefore subscribe to the contention of the appellant that such an order is unjustified in law. Now it is only orders of remand passed under Order XLI, Rule 23, which are subject to appeal. The present order which is not passed under that section, but under the inherent power of the Court (see Section 151), is not appealable. Our view is supported by a Bench of this Court in the case reported in Athappa Chetty V/s. Ramanatham Chetty (1919) 10 L.W., 359. Our attention has been called by the appellant to the decision in Malayandi Goundan V/s. Bomman Poosari (1923) 17 L.W., 159, but we do not consider that case lays down more than this, that the inherent power of the Court to remand, if existent at all, should not be exercised in any case in which another procedure, more definitely laid down by the Code, may be followed. Appellant has also relied on certain observations by the referring Judges in Raman Nayar V/s. Krishnan Nambudripad (1922) I.L.R., 45 Mad., 900 (F.B.) but, in the judgment in that case, all the Judges were careful to restrict their judgment to the application of Order XLI, Rule 28, to the case before them, to which they all agreed it applied. That case does not therefore help the appellant. The case of the Lahore High Court Mahmud Shah V/s. Talab Hussain Shah (1923) 73 I.C., 915 is exactly in point, and we agree with the views therein expressed.

(3.) The Appeal is, therefore, incompetent and is dismissed with costs.