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Anwar HussaIn and ors. Vs. S.L. FranklIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 577 of 1953
Judge
Reported inAIR1958All562
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 41, Rules 23 and 25
AppellantAnwar HussaIn and ors.
RespondentS.L. FranklIn and ors.
Appellant AdvocateK.C. Saksena, Adv.
Respondent AdvocateR.C. Ghatak, Adv.
DispositionRevision dismissed
Excerpt:
civil - inherent power of the court - order 41 rules 23 and 25 and section 151 of code of civil procedure, 1908 - powers of the appellate court for remand not restricted under order 41 rules 23 and 25 - court has inherent jurisdiction to order remand if necessary. - .....baid v. kamalanand singh, ilr 33 cal 927 (b).8. the law being as stated above with regard to the power of remand, the civil procedure code of 1908 was passed. the scheme of this code is different from that of 1882. a general power is given by section 107 which is made by its terms subject 'to such conditions and limitations as may be prescribed' (which means prescribed by rules) and the provisions of sections 562 and 566 of the old code are in effect reproduced in order 41, rules 23 and 25; and section 564 has not been re-enacted either in the code itself or in the rules. further a new section applicable to this matter, namely, section 161 was introduced. this section is as follows;'nothing in this code shall be deemed to limit or otherwise affect the inherent power of the court to.....
Judgment:

D.N. Roy, J.

1. This is an application in revision against an order of remand dated the 22nd of December, 1952, made by the Civil Judge of Farrukhabad.

2. The matter came up before a learned single Judge of this Court and in view of certain important questions of law which arose in the case he has referred it to a Bench for decision.

3. The facts may be briefly stated. A suit was filed for an injunction and for recovery of Rs. 500/- as damages. The trial Court gave the plaintiff a decree for injunction and for damages to the extent of Rs. 200/- only. One of the defendants preferred an appeal. The plaintiffs filed a cross-objection in respect of that part of the damages which had been disallowed by the trial Court. The lower appellate Court went into the questions that were raised by the parties and came to the conclusion that the trial of the case by the Munsif had been unsatisfactorily conducted and that there had been no clarification of pleadings of the parties; nor had proper issues in the case been struck. The lower appellate court therefore remanded the case, acting apparently under its inherent jurisdiction and not under any specific provision of the Code of Civil Procedure. The operative portion of the order of the Court below is in these words :

'The result is that the appeal is allowed. The judgment and decree of the trial Court are set aside. The suit is remanded for retrial with the directions that after clearance of pleadings where necessary the trial Court will frame specific issues on all the points, 1 to 7, set out in this judgment and will give parties an opportunity to produce evidence on them. It will then proceed to decide the suit according to law.'

4. Before us the contention of Mr. Saksena may conveniently be considered in two parts. First, whether the power of the appellate Court with regard to a remand under Section 107 of the Code of Civil Procedure of 1908 is restricted to the case specified in Order 41, Rule 23; and, second, whether it was competent to the appellate Court to remand a case in which in the opinion of the Court there has been no proper trial.

5. As regards the first part, in order to ascertain the intention of the Legislature on the point we think it is useful to examine the state of law at the time the 1908 Code was passed.

6. Under the Civil Procedure Code of 1882, the section which corresponded in effect to Order 41, Rule 23 was Section 562. That section, however, was followed by Section 564 which provided that-

'The appellate Court shall not remand a case for a second decision except as provided in Section 562.'

6a. Section 566 of the 1882 Code corresponded to Order 41, Rule 25 of the present Code.

7. It has been held that though the Code of Civil Procedure of 1882 bound all Courts as far as it went, it was not exhaustive and did not affect previously existing powers, and that in matters with which it did not deal the Court would exercise inherent jurisdiction to do that justice between the parties which was warranted by the circumstances and which the necessities of the case required and that in spite of the express provision of section the appellate Court was not precluded from remanding a suit in a case to which neither Section 562 nor Section 566 applied. Reference in this connection may be made to the cases of Habib Bakhsh v. Baldeo Prasad, ILR 23 All 167 (A) and Hukum Chand Baid v. Kamalanand Singh, ILR 33 Cal 927 (B).

8. The law being as stated above with regard to the power of remand, the Civil Procedure Code of 1908 was passed. The scheme of this Code is different from that of 1882. A general power is given by Section 107 which is made by its terms subject 'to such conditions and limitations as may be prescribed' (which means prescribed by rules) and the provisions of Sections 562 and 566 of the old Code are in effect reproduced in Order 41, Rules 23 and 25; and Section 564 has not been re-enacted either in the Code itself or in the rules. Further a new section applicable to this matter, namely, Section 161 was introduced. This section is as follows;

'Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court.'

9. In pur judgment it was not the intention of the Legislature in the Code of 1908 to limit the powers of remand to the cases specified in p. 41, Rules 23 and 25, but that it intended to and did recognise and preserve such powers as had been exercised theretofore.

10. It may fairly be argued that under Section 107 read by itself, and having regard to the words 'subject to such conditions and limitations as may be prescribed', the power of remand is limited to the case described in Order 41, Rule 23; but that does not dispose of the matter, for that section must be read together with Section 151 which not only recognises but expressly preserves the inherent powers of the Court to make such orders as may be necessary for the ends of justice. The question whether it is necessary for the ends of justice to exercise such powers of remand must depend upon the circumstances of each particular case and in exercising such jurisdiction the Court must no doubt be careful to see that its decision is based on general legal principles and subject to the rule that if the Code does contain certain specific provisions which would meet the justice of the case such provisions should be followed and the inherent jurisdiction should not be invoked.

It follows therefore that the powers of the appellate Court as regards remand are not restricted to the cases specified in Order 41, Rules 23, and 25 but the Court by reason of its inherent jurisdiction, recognised and preserved in the Code, as mentioned above, may order a remand in cases other than the case specified in Order 41, Rules 23 and 25 if it be necessary for the ends of justice. The view that we take is supported by the Full Bench decision of the Calcutta High Court in Ghuznavi Abdul Karim v. The Allahabad Bank Ltd. ILR 44 Cal 929: (AIR 1917 Cal 44) (C), which seems to have been followed in Bhairab Chandra v. Kali Kumar, 37 Cal LJ 491: (AIR 1923 Cal 606). (D) and Jnanendra Mohan v. Profullananda Goswami : AIR1928Cal812 . There is an Oudh decision in Ram Dhani v. Nagar Mal, AIR 1941 Oudh 561 (F), to the same effect. In this decision the Oudh Court held that an appellate Court's power of remand is not circumscribed within Order 41, Rules 23 and 25; and that the appellate Court has ample power to remand a case apart from the aforesaid provisions.

11. There is a Full Bench decision of our own Court in Bishwanath Singh v. Abdul Jabbar : AIR1948All19 , which has relied upon the view taken by the Full Bench of the Calcutta High Court in the case cited above.

12. The lower appellate Court has stated in its judgment that some of the most material propositions of fact and law that arose from the pleadings of the parties were not considered by the trial Court and that attention was not focussed on those points to arrive at a correct decision. We have looked into the judgment of the trial Court as also that of the lower appellate Court and we are of the opinion that in this particular case some of the most material propositions of fact and law arising from the pleadings of the parties were not properly considered by the trial Court and proper issues had not been framed. In this view of the matter the order of remand appears to us to have been just and reasonable.

There can be no doubt that the powers of the appellate Court as regards remand are not restricted to the case specified in Order 41, Rules 23 and 25 and the Court by reason of its inherent jurisdiction, recognised and preserved in the Code, under Section 151 may order a remand in cases other than a case specified in Order 41, Rule 23 and 25 if it be necessary for the ends of justice. There can further be no doubt that having regard to the facts and circumstances of the case it was competent to the lower appellate Court to remand the case in which in the opinion of that Court there has been no proper trial.

13. Mr. Saksena has also contended that if the lower appellate Court was of the view that the trial Court omitted to frame or try any issue, or to determine any question of fact, which appeared to the appellate Court essential to the right decision of the suit upon the merits, the appellate Court should have framed the issues and referred the same for trial to the trial Court under the provisions of Order 41, Rule 25 of the Civil Procedure Code; and it has been argued that the lower appellate Court ought not to have vacated the decree and remanded the whole suit for retrial and should not have given the parties fresh opportunity to lead additional evidence.

We have already stated above when We referred to the Oudh decision in AIR 1941 Oudh 561 (F), that the power of remand is not circumscribed within Order 41, Rules 23 and 25 and that the appellate Court has ample power to remand a case apart from the aforesaid provisions. Where, therefore, some of the most material propositions of fact and law arising from the pleadings of the parties were not properly considered by the trial Court and proper issues had not been framed, the Court was perfectly justified in remanding the case for a retrial as it was necessary for the ends of justice. In such a case the Court could not have prevented the parties from adducing additional evidence on the matter.

14. We see therefore no force in this revision and we dismiss it with costs.


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