JAGATHARI SAHA Vs. MEDINI MOHAN BURDHAN

JUDGEMENT

(1.) This is an appeal from an order of the Additional District Judge of Tipperah remanding a case for rehearing and disposal to the Munsif's Court at Comilla. Under Order 43, Rule 1(u) an order under Rule 23 of Order 41 reminding a case, where an appeal would lie from the decree of the appellate Court, is appealable. If is conceded that an order of remand made under the Code is not appealable unless it is within the ambit of Order 41, Rule 23. Order 41, Rule 23 reads as follows: Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate Court may, if it thinks fit, by order remand the case, and may 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 whose 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; and the evidence (if any; recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. <JGN>Page</JGN> 2 of 4

(2.) At the trial in the course of the proceedings out of which the present appeal arises, the plaintiff sought to recover a sum of Rs. 1,356 in respect of which a bond had been executed by Defendant No. 1 as agent and manager of Defendant No. 2. The suit was heard upon the merits, and after all the issues raised had been determined, the learned Munsif decreed the suit as against Defendant No. 2 and dismissed the suit as against Defendant No. 1. Defendant No. 2 appealed, and at the hearing before the learned District Judge he held, agreeing with the learned trial Judge, that Defendant No. 2 was prima facie liable for the sum that the plaintiff claimed. The learned District Judge having, upon the merits of the case so far as they had been investigated, expressed his opinion that the decision of the learned Munsif was correct proceeded as follows: The next question is the question of limitation which does not appear to ma to have been sufficiently explored in the lower Court. No issue was drawn under this head, and the learned Judge added: I think, therefore, that the issue of limitation should be expressly raised, and that definite evidence bearing expressly on that issue should, if possible, be produced. The case is, therefore, sent back for re-hearing and disposal to the learned Munsif on the issue of limitation. Both parties will be at liberty to produce evidence bearing on that issue. The costs of this appeal will be costs in the action.

(3.) Now, it is the common case, both of the appellant and the respondents, having regard to what took place at the trial and on the appeal, that the conditions set out under Order 41, Rule 23, upon the fulfilment of which alone the appellate Court could remand the case under that rule, had not been fulfilled, for the learned Munsif had not disposed of the suit upon a preliminary point upon the merits, and the decree passed by the learned Mtmsif was not reversed on appeal by the learned District Judge. In those circumstances the learned District Judge had no jurisdiction to make an order of remand under Order 41, Rule 23, and if in fact he had passed the order of remand purporting to act under Rule 23, he was acting illegally, and I should have thought that the order was subject to revision under Section 115 of the Civil P. C. as having been made without jurisdiction. A conclusion of the matter in that sense would be in consonance with the judgment of Walmsley and Shamsul Huda, JJ., in the case of Mohendra Nath Chakravaiti V/s. Ramtaran Bandopadhya [1919] 31 C.L.J. 357. It appears, however, that in Basumati Devi V/s. Taritbasini Dasi [1919] 31 C.L.J. 354, Richardson and Beachcroft, JJ., in respect of the order of remand passed in that case observed: It may be that regard being had to the terms of Rule 23, this is not a case in which it was, strictly speaking, open to be learned Subordinate Judge to mike an order under that rule. But whether the order was regularly made or irregularly made, it appears to me to be in form and substance an order under that rule. That being so, the order must be treated as an order under Rule 23 from which an appeal lies. <JGN>Page</JGN> 3 of 4