UMESH NARAIN CHOWDHURY Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This appeal arises out of a suit for a declaration of the plaintiffs title to certain lands and also a declaration that the said lands are not liable to assessment of revenue under the provisions of Act IX of 1847. The suit was decreed by the Court of first instance. On appeal preferred by the defendant the lower appellate Court set aside the decreed passed by the Court of first instance in favour of the plaintiffs and made an order if remand which is questioned before us in the present appeal, which has been preferred by the plaintiffs.

(2.) A preliminary objection has been taken on behalf of the respondent to the effect that the order in question was not passed by the learned Judge under the provisions of Order 41, Rule 23 and that, therefore, no appeal lies to this Court from that order. As to this preliminary objection it will be observed that the learned Judge does not say anywhere in his judgment under what provisions of law he purported to pass the order and I am not prepared to bold in the absence of anything definitely stated by the learned Judge that the order was not passed under the provisions of Order 41, Rule 23 of the Civil Procedure Code. To hold otherwise would be to curtail the right of appeal which should not be done except upon very clear proof of circumstances justifying such curtailment. Assuming, therefore, that the learned Judge made the order under the provisions of Order 41, Rule 23, although ill may not be that the provisions of that rule strictly justify the order in question. I am of opinion, following the decision in the case of Radha Krishna Saha V/s. Kamal Kamini Debya A.I.R. 1922 Cal. 456 that) an appeal lies to this Court from that order. The preliminary objection, therefore, in my opinion, fails.

(3.) Then as to the appeal itself the learned advocate appearing on behalf of the appellants has urged two points for our consideration. The first is that the order of remand is not one contemplated by law and that the findings of the learned Judge do not disclose any opinion for reversing the decision of the Court of first instance in this matter and that if the learned Judge was of opinion that the proper issue had not been framed or had not been tried he should have made an order under the provisions of Order 41, Rule 25 or if he was of opinion that additional evidence was necessary he should have made an order under the provisions of Order 41, R.27. The second contention pub forward on behalf of the appellants is that the learned Judge was wrong in directing certain amendment to be made in respect of one of the issues framed in the suit namely, Issue No. 7.