HIRA LAL PAL Vs. ETBAR MANDAL

JUDGEMENT

(1.) On consideration we are of opinion that there is no sufficient reason for our interference. The point which was taken at the hearing was that the learned Subordinate Judge in the Court of Appeal below was wrong in treating the decision of his predecessor upon issues Nos. 3 and 4 in the suit as final so far as he was concerned and in refusing to re-consider those issues upon the evidence for the purpose of arriving at an independent determination in regard to them. Issues Nos. 3 and 4 relate to the merits of the dispute between the parties and what happened was this. The first Court originally decided those issues against the plaintiff and dismissed the suit without deciding the remaining issues Nos. 1 and 2, which raised separate questions of limitation and misjoinder. Upon appeal the then Subordinate Judge in a judgment, dated the 31st May 1910, found in the plaintiff s favour upon issues Nos. 3 and 4 and remanded the suit to the first Court with the direction that the Munsif was to "dispose of the suit after the trial of the first and second issues and according to the findings of this Court, on the third and fourth issues." There was an appeal to the High Court from the order of remand and the High Court in its judgment of the 4th June 1912, held that the order was wrong inasmuch as it was passed apparently under Rule 23 of Order XLI whereas the case should have been dealt with under Rule 25 of the same Order. In pursuance to directions given by this Court, the suit was then remitted to the first Court in order that the Munsif might try issues Nos. 1 and 2 and certify his findings thereon to the lower Appellate Court, upon whose file the appeal remained as a pending appeal. When the record again came up to that Court, the Subordinate Judge who had previously dealt with the appeal had left. His successor expressly refused to review the decision already arrived at on issues Nos. 3 and 4 and confined himself to a consideration of the first two issues in regard to which he accepted the findings of the Munsif which were in favour of the plaintiff. It may be mentioned that those issues are quite independent of issues, Nos. 3 and 4. The suit is a suit for ejectment. The parties are rival tenants. The true title is found in the plaintiff. The defence to which issues Nos. 1 and 2 were directed was whether the plaintiff had been dispossessed by the landlord, whether he ought to have been made a party and whether the limitation specially provided by the Bengal Tenancy Act for suits between landlord and tenant applied? These questions have been answered in the negative and upon the whole of the findings including those of his predecessor, the Subordinate Judge made a final decree in the plaintiff s favour. The contention is that the decree is wrong because the Subordinate Judge refused to treat the issues decided by his predecessor as open to further discussion and the contention is pushed to this point that if the appeal had come the second time before the Subordinate Judge who first dealt with it, he too would not have been bound by his previous judgment.

(2.) Now, I observe that the first Subordinate Judge evidently intended to dispose off finally issues Nos. 3 and 4. This is clear from the terms of the order of remand. It is equally clear that the High Court in its judgment of the 4th June 1912 did not contemplate a re-hearing of these issues. Having pointed out that the Subordinate Judge ought "only to have sent the case back under Rule 25 of Order XLI in order that the Munsif might come to findings on issues Nos. 1 and 2," the learned Judges added: "it would have been open to the parties then to argue on those two issues (namely, issues Nos. 1 and 2) and the lower Appellate Court should have then proceeded to deal with the case." There is no suggestion that issues Nos. 3 and 4 should be re-argued or re-heard. The High Court did not set aside the Subordinate Judge s judgment of the 31st May 1910, but merely altered the form of the remand. Prima facie it would seem sufficient to say that in the subsequent proceedings the High Court s orders were properly understood and carried out. It was argued, however, that, nothing being expressly said about issues Nos. 3 and 4, the orders operated under the Civil Procedure Code to re-open them, and in support of this argument some reported cases were cited which must be briefly noticed.

(3.) The case of Boncharee Ghose v. Ainooddeen Biswas 24 W.R. 137 is of no assistance to the appellant. The case had been wrongly remanded by a Subordinate Judge and the High Court gave specific directions as to how it was to be dealt with, including a direction that when the case came again before the Subordinate Judge, with the findings of the Munsif upon the issues sent down to him for trial, the Subordinate Judge was to hear the appeal de novo. In the present case the High Court might, no doubt, have made a similar direction but did not do so.