RAMPAT SAHU Vs. BHAJJU SAHU

JUDGEMENT

(1.) This is an appeal from an order by the Subordinate Judge, sitting in appeal, remanding a suit to the Munsif for re-trial upon fresh evidence. There not having been a final determination of the rights of the parties no appeal in the regular sense lies; but we have been asked to treat it as an application in revision on the basis that the Subordinate Judge had no jurisdiction to order the remand in question. We have acceded to that request and heard the case as an application in revision.

(2.) In the suit before the Munsif which was one to recover a sum of some Rs. 200 odd on a bahikhata, the plaintiff, supported by a formidable array of legal talent consisting of an advocate and two pleaders, sought to prove the very simple issues involved in such a suit. They called a witness who however proved, nothing at all. First of all he said that he was employed by the plaintiff firm; that he knew their business; that he knew the handwriting of the person who kept the bahikhatas; and the entries therein were in that person's handwriting but he offered no evidence of the transactions themselves and indeed did not prove the debts which were purported to have been recorded in the bahikhata. His evidence in cross-examination went somewhat nearer to the points which the plaintiff had to record if he wished to succeed, but, notwithstanding the efforts of the three pleaders on behalf of the defendants, who conducted the cross-examination, to facilitate the plaintiff's case, even they failed to elicit from the single witness the points which were necessary for the plaintiff's success. The learned Munsif however considered that the plaintiff was entitled to succeed and gave judgment for him. The defendant thereupon went to the appellate Court.

(3.) The Subordinate Judge rightly apprehended that the evidence adduced by the plaintiff and strengthened by the cross-examination on behalf of the defendant did not prove that case but he took an unusual course, for, instead of acting upon the conclusion of fact at which he had arrived, namely that the witnesses called on behalf of the plaintiff had not proved the plaintiff's case, and allowing the appeal and dismissing the suit, he decided that it was only right that the plaintiff should have another chance of making out his case, and thereupon he made the order that the case should be remanded to the lower Court for retrial upon fresh evidence, Now it is true that appellate Courts have inherent power of remand as well as specific power of remand given them by the Code, but the Courts, as has been pointed out more than once, should be slow to exercise that juris diction and should only use it in appropriate cases. The power of remand is not intended to allow an unsuccessful plaintiff, who had failed to prove his cause of action to have another attempt and call witnesses whom he might have called on the first occasion. These principles have been referred to in the judgment of James, J. in Gorakh. Prasad Srivastava V/s. Jhari Shanker Prasad 1934 Pat 284, and the right of this Court to interfere in revision with an improper order of remand is dealt with in the case of Banka Behari Deb V/s. Birendra Nath Dutt. 1927 Cal 850. The learned Subordinate Judge in appeal should have confined himself to acting upon the conclusion of fact at which he had arrived that the plaintiff had failed to prove his case and should have allowed the appeal and dismissed the suit with costs throughout and that is the course which it is our duty to follow in this case. The appeal is allowed with costs. We assess the hearing fee at two gold mohurs. Varma, J.