MEAH VZIR ALI SARDAR Vs. SAVAI BEHARA

JUDGEMENT

(1.) This is an appeal from an order remanding a case in appeal. The plaint was filed so long ago as the 13th May 1910. The judgment of the Subordinate Judge in the Court of first instance is dated 31st May 1911 and the judgment now under appeal before us is dated the 15th April 1912. We are now at the end of January 1916. It is, in our opinion, very lamentable that this matter should be still undecided, more especially as, for the reason which we are about to give, there does not appear to have been any substance in the appeal,

(2.) It is contended, firstly, that inasmuch as the Court of first instance did not decide the case upon a preliminary point the order of remand ought to have been made under Order XLI, Rule 25, and that the Appellate Court should have kept the case on its own file. In this connection it is conceded that the irregularity cannot be given effect to unless the appellant was prejudiced by the procedure adopted; and in order to establish that he was so prejudiced, it is pointed out that two orders which are alleged to be erroneous in law were passed incidentally by the lower Appellate Court. The first was that three documents were admitted which had been rejected by the first Court as out of time, and the second was that the Judge has directed the plaintiff to add three persons as defendants before proceeding with the case.

(3.) Now curiously enough neither of these points has any substance in it. It is clearly found by the learned Judge in the Court of Appeal below that the documents were not out of time and his finding of fact entirely disposes of the question, and shows that the Subordinate Judge very improperly rejected these papers on one excuse on the 25th April 1911 and on another and wholly different excuse on the 26th April when a second attempt was made to file them. We need not go into details which are fully set out in the judgment of the lower Appellate Court.