DEVORAMPOODI VENKAMMA Vs. GOPARAJU PERRAJU

JUDGEMENT

(1.) This is, an appeal from an order of the Second Additional Subordinate Judge of Narsapur remanding O.S. No. 11 of 1921 to the file of the District Munsif of Tanuku for the admission of additional evidence. The course which, the litigation took has been reviewed in. his order. There was a question whether the plaintiff had secured a division and delivery of the half share in the lands which he obtained under the compromise decree in the suit of 1900.

(2.) Upon that question a delivery receipt was tendered in evidence before the District Munsif "and by him rejected on the ground that it was a document compulsorily registrable. The learned Subordinate Judge, differing from this view, held that the document was admissible and remanded the case for the admission not only of this document, but of some other documents for the plaintiff and also for the contesting, 4 defendant. A question is raised whether this order is appealable as having been passed under Order XLI, Rule 23, of the Code of Civil Procedure, and that necessitates a finding whether the District Munsif in excluding the delivery receipt (found subsequently admissible) can be said to hare decided the suit upon a preliminary point. In the now well-known Full Bench case--Malayath Veetil Raman Nayar v. Krishnan Nambudripad 69 Ind. Cas. 828 : 45 M. 900 : 31 M.L.T. 208 : 16 L.W. 425 : 43 M.L.J. 354 : (1922) M.W.N. 589 : A.I.R. 1922 Mad. 505 (F.R.)--that expression has been given a very wide construction that it is any point the decision of which avoids the necessity for the full bearing of the suit. It is contended hat wherever evidence properly admissible is rejected, the full hearing of the suit is to that extent curtailed or restricted but I think it is impossible to accede to his argument in that broad form because it is perfectly clear that there may occur cases of refusal to admit evidence we did not in any respect thereby limit the scope of the suit; and where the learned Chief Justice in the case just quoted instanced a failure to admit tendered evidence I do not think he can be understood to have meant that in all such cases the disposal was necessarily upon a preliminary point. In my view, rejection of evidence in order to produce such a consequence must be found to have restricted the trial of the suit, as for in stance in the Full Bench case itself, where the plaintiff wished to let in evidence of forfeiture of the service tenure which the earned District Munsif refused to accept on the ground that his claim must be decided upon the construction of the document evidencing the grant. In the present case it is scarcely contended that the omission to receive evidence only one piece of which the delivery receipt, was tendered before the District Munsif, caused him to restrict what would otherwise, had it been admitted, have been the scope of the trial. I find accordingly that no appeal will lie inasmuch as the learned Subordinate Judge's remand order cannot be held to have been passed under Order XLI, Rule 23.

(3.) The question then arises whether we should treat the appeal as a civil revision petition on the ground that in passing such an order the Appellate Courted without jurisdiction and this raises the question whether, beyond the express provisions contained in the rules tinder Order XLI, Appellate Court possesses an inherent power to remand a suit for fresh trial by the Court of first instance. Where Appellate Court considers that for any cause, such as a refusal by the Court of first instance to admit evidence, any document should be produced or any witness should be examined, it may under Rules 27 and 28 rectify the omission itself or it may direct the lower Court to take such evidence and to send it when taken back to itself. It is quite clear that in the present case r the learned Subordinate Judge might have availed himself of these provisions, keeping the appeal upon his file until the direction given to the lower Court had been; discharged by the return of the record, including the subsequently received evidence. Had he inherent powers apart from these provisions to remand the case for the reception of the evidence and for final disposal by the trial Court? The facts are very closely comparable to those which Odgers, J., and myself dealt with in Balla Mallayya V/s. Peddi Veerayya 10 Ind. Cas. 135 : 52 M.L.J. 90 : 25 L.W. 198 : 38 M.L.T. 15 : A.I.R. 1927 Mad. 335, where the question arose whether an inherent power existed in a case where the Appellate Court might have acted but did not act under Order XLI, Rule 25. In that case I came to the conclusion with some hesitation that the claim to inherent powers must be allowed, and in another case Karupanna Pillai V/s. Ettumalai Pillai 103 Ind. Cas. 670 : which came before a Bench similarly constituted, but which did not involve a conflict between the course adopted by the Appellate Court and any expressed rule, we held that there was an inherent power to amend the plaint, re-cast the issues and remand the case for further hearing and disposal. This latter case was largely based upon the authority of Muppavaraju Venkata Radhakrishna Rao V/s. Venthurumilli Venkatrao 84 Ind. Cas. 965 : 48 M. 713 : 47 M.L.J. 552 : 20 L.W. 711 : 35 M.L.T. 135 : (1924) M.W.N. 922 A.I.R. 1925 Mad. 229. For an instance of the recognition of inherent powers in a case where the Code expressly provides an alternative procedure I may cite Sheikh Muhammad Maracayar V/s. Rangasami Naidu 69 Ind. Cas. 826 : 16 L.W. 515 : 31 M.L.T. 182, which followed Athappa Chetty V/s. Ramanathan Chetty 53 Ind. Cas. 417 : 37 M.L.J. 536 : 10 L.W. 359. The latter case has been criticised by the learned Chief Justice in Malayath Veetil Raman Nayar V/s. Krishnan Nambudripad 69 Ind. Cas. 828 : 45 M. 900 : 31 M.L.T. 208 : 16 L.W. 425 : 43 M.L.J. 354 : (1922) M.W.N. 589 : A.I.R. 1922 : Mad. 505 (F.R.), not, however, upon this point but upon the construction there put upon the phrase "preliminary point". In view of this state of the authorises I do not find sufficient ground tore-consider the view which I took in Balla Mallayya V/s. Peddi Veerayya 100 Ind. Cas. 135 : 52 M.L.J. 90 : 25 L.W. 198 : 38 M.L.T. 15 : A.I.R. 1927 Mad. 335, although I think that in the present case the learned Subordinate Judge would have been better advised had he conformed his order to the provisions of the rules above referred to. I must hold accordingly that the lower Appellate Court had inherent power to order the remand and that the case is, therefore, not one which should be interfered with in revision. I would, therefore, dismiss the appeal with costs. Ananthakrishna Ayyar, J.