BANKA BEHARI DEB Vs. BIRENDRA NATH DUTTA

JUDGEMENT

(1.) This is an appeal from an order of the learned Subordinate Judge of Cachar remanding for re-trial a suit heard by the learned Munsif of Silchar. At the hearing of the appeal a preliminary objection was taken by the respondents that no appeal lay from the order of remand. It appears that after the hearing of the suit had been concluded the defendant raised the question whether a large number of persons, more than twenty in number represented by the plaintiff in the suit, were not members of an unregistered company within Section 4, Indian Companies Act. During the hearing of the suit no issue was raised with respect to this question although a few casual questions were addressed to the plaintiff on the subject and the learned Subordinate Judge took the view that the issue, as to whether the persons represented by the plaintiff were members of an unregistered company formed for the purpose of carrying on a business for gain, ought further to be investigated. Accordingly, the learned Subordinate Judge ordered that As the decision of the case mostly depends upon the question whether it is an association or company or partnership consisting of more than 20 members, acquiring lands for the purpose of gain, and as no specific objection was taken in the defendants written statement, and no issue was framed, and evidence was not fully gone into, the case must go back to the lower Court for the determination of the question. I, therefore, frame the following issue : "Whether the plaintiff and 28 persons as mentioned in Schedule 1 of the plaint formed a company or association <JGN>Page</JGN> 2 of 5 or partnership for acquiring lands for the purpose of gain, and if so, whether the suit is maintainable under Section 4(2), Companies Act. The Court below will allow the parties to give evidence on the point and hear their arguments, and if it is satisfied that they have formed a company or association or partnership for acquiring lands for the purpose of gain, and it was not registered under the Companies Act, the suit will be dismissed. But if the case does not come within the purview of Section 4(2), Indian Companies Act, the suit will be decided on the merits on the evidence already adduced by the parties. He will consider the effect of the defendants purchase by kobala (Ex. B), i.e. whether they have purchased 1 bigha of plots Nos. 206, 207 or 208 or less. The appeal is, therefore, allowed. The decree of the lower Court is set aside, and the suit is remanded to the lower Court for disposal according to the directions given above. Costs will abide the result.

(2.) It is against this order that the present appeal is brought.

(3.) In support of the preliminary objection the learned vakil for the respondents contended that no appeal lay from the order of remand as made, because the learned Subordinate Judge had no jurisdiction to make the order under Order 41, Rule 23. It is abundantly clear that the order of remand as made was passed without jurisdiction, because the learned Munsif who tried the case did not determine the case upon a preliminary issue, but heard and decided the suit upon the merits. The condition precedent, therefore, to the exercise of the power of remand with which the Court is invested under Order 41, Rule 23, was not fulfilled, and the order of remand as made could not validly have been passed under Rule 23, and was ultra vires the Court that passed it. The result is that no appeal lies from the order as made, for, under Order 43, (1)(u) an appeal only lies if the order of remand has been passed under Order 41, Rule 23.