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Babu Nand Vs. Sohawan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All26
AppellantBabu Nand
RespondentSohawan and anr.
Excerpt:
.....- applicability of provisions as to first appeals--remand--judgment of first appellate court--civil procedure code, sections 564, 565, 574, 578, 584, 587. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the..........was in law no judgment at all, because it does not satisfy the requirements of section 574 of the civil procedure code, in not stating the points for determination raised by the pleas in appeal, the decision upon them, and the reasons for that decision. the remarks made by me in the recent case of mahadeo prasad v. sarju prasad i. l. r., 8 all., 614, apply, mutatis mutandis, to that now before me, and no useful purpose would be served by repeating to-day the grounds stated therein by me for holding that decisions, like that of the subordinate judge here, are neither within the letter or the spirit of the law declared in that behalf.2. i decree the appeal and setting aside the decree of the lower appellate court, direct that the record be returned to the subordinate judge, in order that.....
Judgment:

Straight, Offg., C.J.

1. I am of opinion that the so-called judgment of the Lower Appellate Court, to which exception is taken, was in law no judgment at all, because it does not satisfy the requirements of Section 574 of the Civil Procedure Code, in not stating the points for determination raised by the pleas in appeal, the decision upon them, and the reasons for that decision. The remarks made by me in the recent case of Mahadeo Prasad v. Sarju Prasad I. L. R., 8 All., 614, apply, mutatis mutandis, to that now before me, and no useful purpose would be served by repeating to-day the grounds stated therein by me for holding that decisions, like that of the Subordinate Judge here, are neither within the letter or the spirit of the law declared in that behalf.

2. I decree the appeal and setting aside the decree of the Lower Appellate Court, direct that the record be returned to the Subordinate Judge, in order that he may adjudicate upon it in accordance with the provisions of the Civil Procedure Code. Costs of this appeal to be costs in the cause.

Mahmood, J.

3. I have arrived at the same conclusion as the learned Offg. Chief Justice; but I am anxious to explain my reasons, because in the recent Full Bench ruling of this Court in Jadu Bat v. Kanizak Husain, I.L.R. 8 All. 676, a great deal of what I said in my judgment in connection with the remand of cases for trial de novo by the Court of first appeal has been understood by my learned brother Tyrrell as if it related also to the powers of this Court in second appeals. I am led to this conclusion on account of the observations which that learned Judge made in the Full Bench case with reference to Mahadeo Prasad v. Sarju Prasad I. L. R., 8 All., 614, in which the present Office Chief Justice delivered the judgment in which I concurred. That case was not a first appeal, and had to be dealt with by us as a Court of second appeal, and the exact point which we had to consider was, whether the judgment of the Lower Appellate Court in entirely ignoring the provisions of Section 574 of the Civil Procedure Code was such as we could accept, or it constituted such an irregularity as could not be covered by the provisions of Section 578 of the Code. My judgment in that case neither dealt with the question of nullity, nor can it be understood to relate to the question which had to be dealt with in the Full Bench case to which I have referred. But because the misapprehension has occurred, I must state my views in regard to the distinction which exists between the duties of the Court of first appeal and those of the Court of second appeal in dealing with such matters.

4. Now, speaking generally, the whole of our Civil Procedure Code may be said to consist of four main departments of procedure: one relating to the ordinary procedure to be adopted by the Courts of First Instance; another relating to the ordinary procedure of the Court of first appeal; another to the ordinary procedure in second appeals; and then there are rules as to incidental and miscellaneous matters which apply more or less to all the three departments which I have first described. Part VI of the Code deals with the subject of appeals, and Chapter XLI, which occurs in that Part, relates to first appeals; and it is in that Chapter that Sections 562, 564, and 565 occur, as also Section 574, with which we are here concerned, These various sections are not primarily applicable to second appeals, to which Chapter XLII of the Code relates, but they, along with other rules, are made applicable to the second appellate Court, 'as far as may be,' on account of Section 587 of the Code. The phrase which I have just emphasized is an important expression in that section; and I have had to consider its effect in Bam Narain v. Bhawanidin;1 again in Sheoambar Singh v. Lallu Singh2and on both those occasions I expressed views to which I still adhere--views which are in keeping with the opinion of Straight and Tyrrell, JJ., in Sheoratan Rai v. Lappu Kuar I. L. R., 5 All., 14, where those learned Judges held that Section 565 of the Code does not apply to second appeals.

5. I have referred to these cases as drawing a clear distinction between the duties of the Court of first appeal and those of the Court of second appeal, both in connection with the provisions of Section 574 and Section 578, as well as in connection with the remand of cases for trial de novo. Now, all my observations in the Full Bench case, referred to by me, expressly related to the impropriety of remands for new trials in the cases which I there discussed, and which were before this Court in its jurisdiction as the Court of first appeal--a jurisdiction which must be regulated by Chapter XLI of the Code. But the jurisdiction of this Court in second appeals under Chapter XLII of the Code is limited to the matters provided for by the three clauses of Section 584; and it is Only by reason of Section 587 that, 'as far as may be,' we have to apply here in second appeal to this case the provisions of Section 578 of the Code. In my opinion that section cannot be so applied as to throw upon this Court, as a Court of second appeal, duties which the law imposes only upon the Courts of first appeal, and which duties would obviously go beyond the limits of Section 584 of the Code.

6. Such being my view of the law, I cannot but hold that Section 574 of the Code contains one of the most salutary provisions of the law; and that considering that this Court in second appeal is bound to accept the findings of fact arrived at by the Lower Appellate Courts, we must insist upon a due obedience by those Courts of, the mandate of the Legislature contained in that section. I must not be taken to say that any kind of irregularity will by itself operate to reduce the judgment of the Lower Appellate Court to a nullity, or necessarily require a case to be sent back to such Court for being tried de novo, For, in the case before the learned Judge of the Lower Appellate Court, in defining the exact question which he had to determine, simply says: 'The point to be determined on appeal is, whether or not the decision is consistent with the merits of the case.' This the learned Judge of the Lower Appellate Court regarded as the only point which he had to deal with; but the point is an issue which might, if recognized as correct, apply absolutely to every kind of litigation that might come before a Court of first appeal. But the fact is, that a proposition so roundly worded is no issue at all, because it does not specify the exact questions which arise in the case and require determination, within the meaning of Section 574 of the Code. Then again the substantial part of the judgment of the Lower Appellate Court consists of the following:

7. 'The finding arrived at by the Munsif, that the plaintiff's claim is established, is correct and consistent with the evidence. The pleas urged in appeal are therefore undeserving of consideration.'

8. I cannot regard an expression of sentiments of this character as a judgment within the meaning of Section 574 of the Code, and because, as I have already indicated, Sections 564 and 565 are not in their integrity applicable to the Court of second appeal, and also because Section 584 of the Code prohibits us from dealing with this case as if we were the Court of first appeal and had to deal with the evidence, I agree with the learned Chief Justice in holding that the only course open to us as a Court of second appeal is to set aside the decree of the Lower Appellate Court, and to remand the case to that Court for a proper adjudication upon the merits, with reference to the specific provisions of Section 574 of the Civil Procedure Code. Costs to abide the result.

1 In this case the Court of First Instance dismissed the suit on the merits. The plaintiffs appealed to the District Judge, whose judgment was as follows: 'The suit appears to me to be a bit of wanton litigation. I cannot find anything tangible upon which the claim is grounded: the appeal is dismissed with costs.' In second appeal by the plaintiffs it was contended on their behalf that the judgment of the Lower Appellate Court could not be regarded as a judgment within the meaning of Section 574 of the Civil Procedure Code. On behalf of the respondent it was contended that the judgment of the Lower Appellate Court must be regarded as one confirming the views of the Court of First Instance; and that, even if it were defective, the High Court could only remand the case under Section 666 for the trial of the issues arising in the case, and could not set aside the decree of the Lower Appellate Court, as Section 562 did not warrant such a course and Section 564 prohibited a remand for a fresh decision by the Lower Appellate Court.

Lala Lalla Prasad, for the Appellants.

Pandit Bishambar Nath, for the Respondent.

Mahmood, J.-I am of opinion that this contention (respondent's) is unsound, and that the appeal must prevail. In a recent case, Ramnarain v. Bhawanidin, I have explained how the provisions of Section 562 are controlled by the language of Section 587, which renders the provisions of Chapter XLI applicable to appeals from appellate decrees under Chapter XLII. The rules contained in the former chapter were intended to be applicable, in the first instance, to appeals from original decrees, and those rules are not capable of being literally applied to appeals from appellate decrees. The Court of second appeal can apply those rules only, mutatis mutandis, as the Legislature intended, by using the words 'as far as may be' in Section 587, Civil Procedure Code. In the case above cited it was held that in applying Section 562, Civil Procedure Code, to judgments of the Court of first appeal, the words 'so as to exclude any evidence of fact,' used in that section, must be read to signify 'so as to exclude the consideration of any evidence of fact.' In the present case the argument upon which the contention of the learned pleader for the respondent is based is, that under Section 562 the power of the Court of second appeal to remand a case to the Court of first appeal for decision of the case de novo, is limited to cases in which the Lower Appellate Court has erroneously disposed of the appeal upon a 'preliminary point.' And it is contended that, however defective the judgment of the Lower Appellate Court in the present case may be, it has not disposed of the case on a 'preliminary point,' and Section 562 is therefore not applicable. It is further argued that there is no other provision in the Code which would enable us to remand the case for disposal de novo by the Lower Appellate Court. But it seems to me that if such a narrow interpretation is to be adopted, this Court must, in all oases in which the Lower Appellate Court declines to exercise its jurisdiction, or fails to perform its functions properly, undertake the duty of disposing of such oases on the merits. But it is clear to me that our functions in appeals from appellate decrees are regulated by the provisions of Section 584, and the only ground upon which we can interfere with the decrees of Lower Appellate Courts are those enumerated in clauses (a), (b), and (c) of that section. Those clauses are, however, wide enough to justify our setting aside the decree of the Lower Appellate Court in this case and remanding the case to that Court for a decision de novo. The judgment of the Lower Appellate Court, in my opinion, is no judgment at all, for it fails to comply with each and every one of the requirements of the Civil Procedure Code. Section 574 enumerates the essential elements of which the judgment, of the appellate Court should consist, and every one of those elements is wanting in the judgment of the Lower Appellate Court in this case. The judgment neither states 'the points for determination' nor 'the decision thereupon,' and of course 'the reasons for the decision' are totally wanting. According to my view of the law, Section 574 is a resume, mutatis mutandis, of the provisions of the Code applicable to the judgments of the Courts of First Instance, and the object of the section is to impose upon the Courts of first appeal duties similar to those imposed upon the Courts of First Instance in respect of judgments. Section 146 lays down that 'at the first hearing of the suit, the Court shall, after (sic)ading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact, or law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to the Court to depend.' Again Section 204 lays (sic) that 'the Court shall state its finding or decision, with the reasons thereof, upon each separate issue, unless the finding upon any one or more of the issues be sufficient for the decision of the suit.' Now, supposing a case in which the Court of First Instance, without framing any issues and without taking any evidence, records a judgment in which it fails to state its finding or decision, or the reasons thereof, and dismisses the suit, the question would arise whether the Court of first appeal could not set aside such a decree and remand the case for trial de novo. It seems to me that the answer to this question must be the same as the answer to the question raised in this appeal; for I hold that (subject to the provisions of Section 584) in matters of this kind the provisions of Section 587 give us the same powers, mutatis mutandis in regard to the judgments and decrees of the Court of first appeal as the latter possesses in regard to the decision of the Court of First Instance. And, in my opinion, in a case such as I have supposed the Court of first appeal would be perfectly justified by law in setting aside the decree of the Court of First Instance, and remanding the case to that Court for trial de novo, the authority for such procedure being the provisions of Section 562, Civil Procedure Code. According to my view the expression 'preliminary point' used in that section is not confined to such legal points only as may be pleaded in bar of suit, but comprehends all such points as may have prevented the Court from disposing of the case on the merits, whether such points are pure questions of law or pure questions of fact. As an illustration of the latter, a finding by a Court of First Instance, that the plaintiff is not the son and heir of the deceased mortgagor, though a question of fact, would be a preliminary point in a suit for redemption; and if on that finding the Court has dismissed the suit without entering into the merits of the various pleas relating to the mortgage, and without trying the issues arising from such pleas, the Court of appeal, reversing that finding, can remand the case under Section 562. In the present case the erroneous view taken by the Lower Appellate Court has prevented it from considering the case at all on the merits; and the 'preliminary point' (so to say) on which the decree of that Court is based is, that the suit is a 'bit of wanton litigation' and that there is nothing 'tangible upon which the claim is grounded.' As there is no rule of law by which such considerations can bar the disposal of a case on the merits, I would decree this appeal, and setting aside the decree of the Lower Appellate Court, remand the case to that Court under Section 562 for a proper adjudication on the merits; the costs of this appeal to abide the result.

Brodhurst, J.--The Judge in disposing of the appeal has certainly not complied with the provisions of the law, and I therefore concur in remanding the case to the Judge to dispose of the pleas raised in appeal, and to write a judgment in accordance with the provisions of Section 574, Civil Procedure Code.

2 In this case the Lower Appellate Court erroneously disposed of the suit upon a preliminary point. It was contended on behalf of the respondent that, as the evidence upon the record was sufficient to enable the High Court to pronounce judgment and no essential evidence of fact had been excluded, the High Court was not competent to remand the case under Section 562 of the Civil Procedure Code, but must determine it itself.

Lala Jokhu Lal, for the Appellant.

Munshi Kashi Prasad, for the Respondent.

Mahmood, J.-I am of opinion that this contention cannot be allowed to prevail. Chapter XLI of the Civil Procedure Code lays down the procedure to be observed by the Courts in disposing of 'appeals from original decrees,' and the terms of Section 587 render the provisions of that Chapter applicable 'as far as may be' to 'appeals from appellate decrees'-viz., second appeals under Ch. XLII. The wisdom of the Legislature in framing the Code in this manner is quite clear. It was obviously unnecessary to repeat all over again in Ch. XLII rules which, in all essentials, must necessarily be the same as those provided in Ch. XLI in regard to appeals from original decrees. The sole object of Section 587 seems to have been to avoid incumbering the Code with superfluity and repetition of rules. In Ch. XLI itself is to be found Section 582, which is a similar illustration of the same policy. But it is equally clear to me that the provisions of Ch. XLI cannot be applied absolutely, literally, to appeals from appellate decrees, without causing a confusion which the Legislature can never have intended. The words 'as far as may be' become meaningless if they are not to be taken to mean, as in my judgment they obviously do, that the rules contained in Ch. XLI are to be applied to second appeals mutatis mutandis. Thus, in applying Section 562 to second appeals like the present, the word 'suit' must be taken to mean 'appeal;' the words 'so as to exclude any evidence of fact' must be read to signify' so as to exclude the consideration of any evidence of fact.' For in applying the rules of Ch. XLI to appeals under Oh. XLII, the provisions of the most important section of the latter chapter-viz., Section 584, cannot be lost sight of. Otherwise in many cases like the present in which the Lower Appellate Court erroneously disposes of an appeal on a preliminary point of law, it would devolve upon this Court to determine in second appeal questions of the weight of evidence and other matters which are assigned by the Code to the first appellate Court,- in other words, the error of the district appellate Courts would have the effect virtually of converting second appeals into appeals from original decrees. This I am of opinion the law does not contemplate, and it follows from what I have already said that neither Section 565 or Section 566 is applicable to the present case. * * * * The appellant is entitled to an adjudication of his rights by the Lower Appellate Court on the evidence and merits of the case.


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