BISHWANATH SINGH Vs. ABDUL JABBAR

JUDGEMENT

(1.) The question which has been referred to this Bench is whether an appeal lies against the order of remand dated April 17, 1944, against which the appellant purported to institute his appeal.

(2.) The appeal arises out of a suit for the recovery of a certain sum of money on the foot of a simple registered bond dated 12-9-1938. The defendants alleged, among other things, that the bond had been executed on the basis of antecedent debts and old accounts; that they were agriculturists, that the transaction should be re-opened and that the amount due should be calculated in accordance with the Acts, for the relief of agricultural indebtedness. The learned Munsif in whose Court the suit was instituted refused to allow an application by the plaintiffs for the production of their account books at a late stage of the proceedings, but when he came to hear the arguments he changed his mind and directed that the plaintiffs should produce their books within a certain period. The plaintiffs produced some of their books but not all. They alleged that the books which they did not produce were in the High Court in connection with some other proceeding, but they did not ask the Court to summon those books. They made no serious attempt to prove even, the books which they had produced. In the result the learned Munsif held that the plaintiffs had failed to establish that the full amount claimed by them was due and he passed a decree for a smaller amount. The plaintiffs appealed. The learned Judge of the lower appellate Court no where said that the learned Munsif was wrong in his estimate of the plaintiffs evidence or that he had made any mistake in procedure, but he ultimately held that it was necessary in the interests of justice to remand the suit in order to give the plaintiffs a further opportunity of producing their books so that the question of accounts might be properly considered. He, therefore, set aside the decree of the learned Munsif and sent the case back with the direction that it should be re-admitted at its original number and should be decided after the parties had been given an opportunity of producing such evidence as they desired to produce. When the case came up in second appeal before this Court two learned Judges differed, upon the question whether there was an appeal against this order of remand and consequently that question has been referred to us.

(3.) In so far as the rules in 1 Schedule of the C.P.C. are concerned, the only rule under which an appellate Court can pass an order of remand is Rule 23 of Order 41, which, as applicable to this Court, is in the following terms: Where an appellate Court has reversed a decree and all questions arising in the case have not been decided, it may, if it thinks fit, by order remand the case and further direct what issue or issues shall be tried in the case so remanded and shall send a copy of its judgment and order to the Court from whoso decree the appeal is preferred with directions to re-admit the suit under its original number in the register of civil suits and proceed to determine the suit Under Section 104, Civil P.C. an appeal shall lie from certain orders enumerated therein and save as otherwise expressly provided in the body of the Code or by any law for the time being in force from no other orders. The first nine orders enumerated do not include orders of remand, but the tenth item is any order made under rules from which an appeal is expressly allowed by rules. Under Order 43, Rule 1(u) there is an appeal from an order under Rule 23 of Order 41 remanding a case where an appeal would lie from the decree of the appellate Court. It follows that there would be an appeal from the order of remand with which we are concerned in this case if that order was passed under the provisions of Order 41, Rule 23; otherwise no appeal would lie. It has been held in various cases following the decision in Abdul Karim Abu Ahmad Khan V/s. Allahabad Bank Ltd. 4 A.I.R. 1917 Cal. 44 that in some circumstances an order of remand may be passed in exercise of the inherent powers of a Court recognized by Section 151, Civil P.C. but if such an order is passed, there can be no appeal from it under any of the provisions of the Code. These inherent powers must admittedly be confined within very, narrow limits. The Chief Justice of Calcutta in Abdul Karim Abu Ahmad Khan V/s. Allahabad Bank Ltd. 4 A.I.R. 1917 Cal. 44, said: The question whether it is necessary for the ends of justice to exercise such powers of remand (that is, the powers inherent in the Court) must depend upon the circumstances of each particular case and in exercising such jurisdiction the Court must, no doubt, be careful to see that its decision is based on general legal principles and subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case in question, such provisions should be followed and the inherent jurisdiction should not be invoked. Woodroffe J. made a similar remark. Mukerji J. said: The exercise of such inherent power can only be invoked where the Court, is satisfied that the specific provisions of the Code are not sufficient to meet the necessities of the case. The Court of appeal is invested with plenary powers to correct errors of procedure committed by the trial Court, as is clear from an examination of Rules 24 to 29 contained in Order 41 of the Code. These provisions cannot be arbitrarily disregarded...but where the Court of appeal is satisfied that the correction of the omissions of defects in the trial is not reasonably practicable by recourse to one or other of the provisions mentioned, that is, where it is clearly apparent that "the appellate Court cannot itself satisfactorily dispose of the suit on the merits by the adoption of the specific procedure mentioned in Rules 24 to 29 a remand for retrial is not only permissive but obviously incumbent on the Court. The power to pass orders of remand, under the provisions of Section 151, Civil P.C. is obviously confined within very narrow limits, but there is no appeal against such an order when it has been passed and the only question which would arise would be whether the order was one passed in accordance with the jurisdiction of the Court or outside its jurisdiction, a question, which would arise on an application for revision of the order under the provisions of Section 115, Civil P.C.