KALLU Vs. BHAGIRATH LAL

JUDGEMENT

(1.) THIS appeal arises out of a suit in which the plaintiffs claimed a sum of money as being due upon accounts stated between them and the defendants and for money lent. The Court of First Instance dismissed the suit apparently upon the sole ground that the suit could not be maintained on the entries in the bahi kliata. It had framed three issues, namely (1) "Is the amount claimed due to the plaintiffs on accounts and did the plaintiffs obtain defendant Kallu s finger impression on account 1968-1971 Sambat by way of farzi and without payment of consideration? (2) Is the whole claim or any part of the same barred by time ? (3). Are the defendants Nos. 2 to 7 entitled to be exempted or are they liable for the amount claimed?" Witnesses had been called by both parties and it is quite clear that the learned Additional District Judge on appeal was against the defendants on all the issues except the third. The main contention was as to whether or not the plaintiff s suit lay as alleged in the plaint. The Court of First Instance on the authority of Ganga Prasad v. Ram Dayal 23 A 502 : A.W.N. (1901) 150 had dismissed the claim. The lower Appellate Court overruled the objection and referred to the later case of Bhola Nath v. Net Ram 3 A.L.J. 800 : A.W.N. (1906) 185. We think the lower Appellate Court was correct in the view it has taken of the law, and we also agree with the reasons and think that the later authority is the one which should be followed in the present case. The present appeal complains that the Court ought not to have remanded merely the third issue but ought, after deciding the preliminary point, to have remanded the entire case. There is some force in this contention. Under Order XLI, Rule 23, it is only when the Appellate Court reverses the Court of First Instance on a preliminary point that the suit should be remanded. If the lower Appellate Court had decided itself, on the materials it had, all the issues except the third issue and if it was not prepared to decide this issue, what it should have done was to have referred the third issue to the Court of First Instance under Order XLI, Rule 25, and not remanded the case under Order XLI, Rule 23. We think that the Court did decide the first two issues and the only issue left undecided was the third issue. We accordingly allow the appeal to this extent, that we send back the case to the lower Appellate Court with directions that it must either decide the third issue itself (if there are materials on the record to enable it to do so), or refer an issue to the Court of First Instance, and on the return made to that issue finally dispose of the appeal. Costs here and hitherto will be at the discretion of the Court disposing of the case.