RAMDUTT SHANKERLAL Vs. PUNAMCHAND

JUDGEMENT

(1.) THE facts of this case are sufficiently clear from the lower Courts' judgments. It has been urged on appeal that the case was improperly remanded under Q.41, Rule 23 of the Civil P.C., inasmuch as the first Court had given decisions on all the essential issues: of Jagannath v. Maruti [1916] 12 N.L.R. 126. The question of what is a preliminary point has been the subject of much judicial discussion and I have been referred in this connexion to the decision in Ghuznavi v. The Allahabad Bank, Ld. [1917] 44 Cal. 9295. Even in that decision, however, Mookerjee, J., pointed out that where it is clearly apparent that the appellate Court cannot itself dispose of a suit on the merits by the adoption of the specific procedure mentioned in Rules 24-29 of Order 41, Civil P.C., a remand for retrial is not only permissible but obviously incumbent on the Court. In the present case the learned District Judge has pointed out that the separation between Ramdatta and Surajmal is a matter which requires elucidation and that more detailed pleadings-are required in connexion with this and kindred matters. He has also, in paras. 4 and 6 of his judgment, shown that various other matters required elucidation and possibly the production of fresh evidence. On the whole, therefore, I am of opinion that the remand was advisable in the circumstances of the case, even if in order to afford legal justification for the remand, recourse had to be had to the inherent powers of the Court under Section 151 of the Civil P.C.

(2.) I do not, therefore, think that in the present case it is necessary to interfere with the order of remand and I dismiss the present appeal without notice to the respondents.