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Bishwanath Singh Vs. Abdul Jabbar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1948All19
AppellantBishwanath Singh
RespondentAbdul Jabbar and ors.
Excerpt:
- - in the result the learned munsif held that the plaintiffs had failed to establish that the full amount claimed by them was due and he passed a decree for a smaller amount. the exercise of such inherent power can only be invoked where the court, is satisfied that the specific provisions of the code are not sufficient to meet the necessities of the case. ..but where the court of appeal is satisfied that the correction of the omissions of defects in the trial is not reasonably practicable by recourse to one or other of the provisions mentioned, that is, where it is clearly apparent that 'the appellate court cannot itself satisfactorily dispose of the suit on the merits by the adoption of the specific procedure mentioned in rules 24 to 29 a remand for retrial is not only permissive but.....allsop, j.1. the question which has been referred to this bench is whether an appeal lies against the order of remand dated april 17, 1944, against which the appellant purported to institute his appeal.2. the appeal arises out of a suit for the recovery of a certain sum of money on the foot of a simple registered bond dated 12-9-1938. the defendants alleged, among other things, that the bond had been executed on the basis of antecedent debts and old accounts; that they were agriculturists, that the transaction should be re-opened and that the amount due should be calculated in accordance with the acts, for the relief of agricultural indebtedness. the learned munsif in whose court the suit was instituted refused to allow an application by the plaintiffs for the production of their account.....
Judgment:

Allsop, J.

1. The question which has been referred to this Bench is whether an appeal lies against the order of remand dated April 17, 1944, against which the appellant purported to institute his appeal.

2. The appeal arises out of a suit for the recovery of a certain sum of money on the foot of a simple registered bond dated 12-9-1938. The defendants alleged, among other things, that the bond had been executed on the basis of antecedent debts and old accounts; that they were agriculturists, that the transaction should be re-opened and that the amount due should be calculated in accordance with the Acts, for the relief of agricultural indebtedness. The learned Munsif in whose Court the suit was instituted refused to allow an application by the plaintiffs for the production of their account books at a late stage of the proceedings, but when he came to hear the arguments he changed his mind and directed that the plaintiffs should produce their books within a certain period. The plaintiffs produced some of their books but not all. They alleged that the books which they did not produce were in the High Court in connection with some other proceeding, but they did not ask the Court to summon those books. They made no serious attempt to prove even, the books which they had produced. In the result the learned Munsif held that the plaintiffs had failed to establish that the full amount claimed by them was due and he passed a decree for a smaller amount. The plaintiffs appealed. The learned Judge of the lower appellate Court no where said that the learned Munsif was wrong in his estimate of the plaintiffs' evidence or that he had made any mistake in procedure, but he ultimately held that it was necessary in the interests of justice to remand the suit in order to give the plaintiffs a further opportunity of producing their books so that the question of accounts might be properly considered. He, therefore, set aside the decree of the learned Munsif and sent the case back with the direction that it should be re-admitted at its original number and should be decided after the parties had been given an opportunity of producing such evidence as they desired to' produce. When the case came up in second appeal before this Court two learned Judges differed, upon the question whether there was an appeal against this order of remand and consequently that question has been referred to us.

3. In so far as the rules in 1st Schedule of the C.P.C. are concerned, the only rule under which an appellate Court can pass an order of remand is Rule 23 of Order 41, which, as applicable to this Court, is in the following terms:

Where an appellate Court has reversed a decree and all questions arising in the case have not been decided, it may, if it thinks fit, by order remand the case and 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 whoso 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

Under Section 104, Civil P.C. an appeal shall lie from certain orders enumerated therein and save as otherwise expressly provided in the body of the Code or by any law for the time being in force from no other orders. The first nine orders enumerated do not include orders of remand, but the tenth item is any order made under rules from which an appeal is expressly allowed by rules. Under Order 43, Rule 1(u) there is an appeal from an order under Rule 23 of Order 41 remanding a case where an appeal would lie from the decree of the appellate Court. It follows that there would be an appeal from the order of remand with which we are concerned in this case if that order was passed under the provisions of Order 41, Rule 23; otherwise no appeal would lie. It has been held in various cases following the decision in Abdul Karim Abu Ahmad Khan v. Allahabad Bank Ltd. 4 A.I.R. 1917 Cal. 44 that in some circumstances an order of remand may be passed in exercise of the inherent powers of a Court recognized by Section 151, Civil P.C. but if such an order is passed, there can be no appeal from it under any of the provisions of the Code. These inherent powers must admittedly be confined within very, narrow limits. The Chief Justice of Calcutta in Abdul Karim Abu Ahmad Khan v. Allahabad Bank Ltd. 4 A.I.R. 1917 Cal. 44, said:

The question whether it is necessary for the ends of justice to exercise such powers of remand (that is, the powers inherent in the Court) 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 specific provisions which would meet the necessities of the case in question, such provisions should be followed and the inherent jurisdiction should not be invoked.

Woodroffe J. made a similar remark. Mukerji J. said:

The exercise of such inherent power can only be invoked where the Court, is satisfied that the specific provisions of the Code are not sufficient to meet the necessities of the case. The Court of appeal is invested with plenary powers to correct errors of procedure committed by the trial Court, as is clear from an examination of Rules 24 to 29 contained in Order 41 of the Code. These provisions cannot be arbitrarily disregarded...but where the Court of appeal is satisfied that the correction of the omissions of defects in the trial is not reasonably practicable by recourse to one or other of the provisions mentioned, that is, where it is clearly apparent that 'the appellate Court cannot itself satisfactorily dispose of the suit on the merits by the adoption of the specific procedure mentioned in Rules 24 to 29 a remand for retrial is not only permissive but obviously incumbent on the Court.

The power to pass orders of remand, under the provisions of Section 151, Civil P.C. is obviously confined within very narrow limits, but there is no appeal against such an order when it has been passed and the only question which would arise would be whether the order was one passed in accordance with the jurisdiction of the Court or outside its jurisdiction, a question, which would arise on an application for revision of the order under the provisions of Section 115, Civil P.C.

4. I may then reiterate that the question which we have to consider is whether the order passed by the learned Judge of the lower appellate Court can be described as an order under the provisions of Order 41, Rule 23 and the answer to that question depends upon the meaning to be attached to the phrase 'all questions arising in the case have not been decided' It has been argued on behalf of the appellant that the meaning of this phrase is that all questions arising in the case have not been decided by the appellate Court. If the phrase means that all questions arising in the case have not been decided by the trial Court, then in this particular case there could be no order of remand under Rule 23 because the trial Court had decided all the questions which arose in the case. The argument addressed to us is based largely upon the history of the Rule 23 as originally framed by the Legislature began with the following words namely:

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.

The provision for appeal in Order 43, Rule 1(u) was for an appeal against an order under Rule 23 of Order 41 remanding a case where an appeal would lie from the decree of the appsllate Court. This Court amended this rule in the year 1926 so as to make all orders of remand appealable, but in or about the year 1934 it was discovered that such a rule was ultra vires because it was repugnant to the provisions of Section 104, Civil P.C. This Court by rule could not provide for an appeal against any order which was not made under one of the rules in 1st Schedule and therefore it could riot provide for an appeal against an order passed under the provisions of Section 151, Civil P.C. The result was that the rule in Order 43, Rule 1(u) was again amended. At the same time Order 41, Rule 23 was amended. I have already described this rule, as it was originally framed by the Legislature and as it now stands. The contention' is that the history of the rule in this Court shows that the rule making body intended to make the provisions of Order 41, Rule 23 so wide that they would include any orders of remand passed in accordance with the inherent powers of a Court. I may put the argument in another way. It is said that the Court intended in 1926 to make all orders of remand appealable. When it was found that it was outside its power to render appealable an order passed under the provisions of Section 151, it endeavoured to bring under the provisions of Order 41, Rule 23 any order which could have been passed under Section 151 so as to achieve its object of making all orders of remand appealable while keeping within the powers allowed to it. If orders of remand which, had previously been passed under the provisions of Section 151 were authorised by the provisions of Order 41, Rule 23, then the Court could provide for an appeal against such orders. It is perhaps reasonable to suppose that the Court when it amended Rule 23 of Order 41, did intend to give the Court of appeal a wider power of passing orders of remand than it had before, but it cannot be inferred from this that it meant to make the powers so wide that they would extend beyond those which were inherent in the Court. The argument placed before us when carried to its logical conclusion is that Rule 23 is now so framed that any appellate Court can remand any case for re-decision by the simple expedient of refraining from deciding any of the issues raised in the appeal. As Mukerji J. said in Abdul Karim Abu Ahmad Khan v. Allahabad Bank Ltd. 4 A.I.R. 1917 Cal. 44 the Court of appeal has ample powers under the provisions of Order 41 Rules 25 to 29 for correcting any mistakes in procedure which have been made by the trial Court. Under Rule 25 where the Court from whose decree the appeal is preferred has omitted to frame or try any issue or to determine any question of fact which appears to the appellate Court essential to the right decision of the suit, the appellate Court can frame issues and remit them to the Court below for trial. Again by Rule 27 if the trial Court has refused to admit evidence which ought to have been admitted or the appellate Court requires any document to be produced or any witness to be examined or if evidence is sought to be adduced by a party in the appeal which after exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree or order under appeal was passed or made, the appellate Court can allow such evidence to be produced before it or under Rule 28 can direct the trial Court to take the evidence. It seems quite clear that no Court under its inherent powers could ignore these rules. If the ends of justice required that there should be a finding upon some issue upon which no finding had been recorded or that some evidence Should be adduced which had not been adduced in the trial Court then the Court, could pass the necessary orders under these rules, but it surely could not under its inherent power. allow new evidence to be adduced contrary to the provisions of Rule 27. If the argument addressed to us by the appellant is a good argument, then the appellate Court could ignore these rules, as, indeed, the learned Judge of the lower appellate Court seems to have done in this case. Although the question is not before us, I am of the opinion that the learned Judge did no more than allow the plaintiffs appellants to adduce evidence which they had not adduced in the Court below and did that without seeing whether they were entitled to do so under the provisions of Order 41, Rule 27. By adopting the expedient of remanding the case he produced this result. There may have been some intention in this Court of making the provisions of Rule 23 wider so as to avoid controversies upon the point whether certain issues could be described as issues on preliminary points but I cannot believe that it was the intention of this Court to make the provisions of the rule so wide, that the appellate Court was given an absolute discretion to remand any case even if the grounds of remand were contrary to the specific provisions of other rules in Schedule I to the Code of Civil P.C. The Oudh Chief Court has mended these rules in the same way as this Court and the learned Judges of that Court in several cases have decided that the meaning of the phrase 'all questions arising in the case have not been decided 'is that they have not been decided by the trial Court. It seems to me that these decisions are also in accordance with the general principles governing the provisions of Rules 23 to 29 of the Order. When a trial Court thinks that it is not necessary to decide all the issues involved but that as a decree can be passed on the basis of decisions on some only of those issues it may record those decisions and pass a decree accordingly. If the appellate Court thinks that the decisions on those issues are incorrect, then it will definitely hold that the trial Court has been in error in passing its decree. This will be a final decision that the findings of the trial Court are definitely wrong and the natural result is that the decree of the trial Court will be set aside. On the other hand, when the appellate Court comes to the conclusion that there is some lacuna due to an oversight or mistake on the part of the trial Court in that some necessary issues have not been decided or some necessary evidence has not been admitted, then the appellate Court is not in a position to say that the decree of the trial Court is wrong. It is in a position only to say that it is not certain whether the decree is right or wrong until the deficiencies have been supplied. On principle it seems that the decree of the trial Court should not be set aside unless the appellate Court is finally satisfied that the decree is a wrong decree. If it is merely in doubt upon this question it should keep the matter open until the issue is resolved or in other words it should get the deficiencies supplied and then decide the appeal upon its merits.

5. In my judgment the argument based on the historical ground is not a good argument.

6. I may mention that it has also been suggested that there are grammatical reasons for thinking that the phrase 'all questions arising in the case have not been decided' means 'all questions arising in the case have not been decided by the appellate Court.' The argument is that a pluperfect tense would have been used if the reference was to decisions by the trial Court or in other words the phrase would have run 'all questions arising in the case had not been decided.' In my judgment there is no force in this argument. It would surely have been contrary to the rules of English grammer to use the pluperfect tense in the absence of a definite past tense or preterite.

7. I am satisfied that no appeal lies in this case whatever view may be taken about the jurisdiction of the Court below as a matter of revision that is not a question before us and I would answer the question put to us by saying that no appeal lies.

Mulla, J.

8. Having had the advantage of perusing the judgment of my learned brother, I feel I can add but little to the reasons given by him to support the answer which he proposes to give to the question referred to the Full Bench, namely, that the order of remand dated 17-4-1944, from which an appeal has been filed in the present case, is not an appealable order. The order in question can be looked at only from two points of view. It is either an order passed under the provisions of Rule 23 of Order 41, Civil P.C. or one passed under the inherent powers of the Court which are recognised and saved by Section 151, Civil P.C. If it falls under the latter category, there can be no doubt that it is not open to appeal. In view of the unanimous authority on that point the position is absolutely incontestable. The only question for consideration, therefore, is whether the order in question could be legally passed under Rule 23 of Order 41, Civil P.C. which runs as follows:

Where an appellate Court has reversed a decree and all questions arising in the case have not been decided, it 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 ff 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.

If the order in question could be legally passed under the above rule, it would clearly be an order appealable under Rule 1(u) of Order 43, Civil P.C. The main argument of the learned Counsel for the appellant based upon the history of the amendments made from time to time by this Court in the language of Rule 1(u) of Order 43 and Rule 23 of Order 41 has been fully considered by my learned brother and I entirely concur with him in his reasons for rejecting that argument. I would, however, point out that the Court when interpreting the language of Rule 23 of Order 41 is not concerned with the real or supposed intention of the Legislature or the Rule Making Body but with the intention as it is expressed by the plain language of the rule so long as that language is clear and unambiguous. As a part of his argument learned Counsel for the appellant strenuously contended that the language of Rule 23 of Order 41 was ambiguous, inasmuch as it did not clearly exclude the interpretation that the appellate Court had power to pass an order of remand after reversing the decree of the trial Court if all questions arising in the case have not been decided either by the trial Court or by itself. It was pointed out that if the rule was intended to apply only when 'all questions arising in the case have not been decided' by the trial Court, words to that effect could easily have been introduced into the rule by the Rule Making Body. It was argued on that basis that the rule must be taken to apply equally to a case in which all questions arising in the case have not been decided by the trial Court and a case in which those questions have not been decided by the appellate Court itself. I am unable to find any force in this argument, for if it is accepted it would lead to two different results which, in my judgment, could not possibly have been either contemplated or intended by the Rule-Making Body. In the first place, it leads to the result that the Rule-Making Body intended to give an absolutely unfettered power to the appellate Court to pass an order of remand by shirking its clear duty to decide all questions arising in the case even where the necessary material for deciding those questions was present on the record. In my opinion it is impossible to accept the position that the Rule Making Body was so obsessed with the idea of giving a right of appeal against every order of remand passed by the appellate Court that it did not care at all whether the appellate Court did or did not perform its clear duty to decide all questions arising in the case where the material necessary for such decision was present on the record. In the second place, if we accept the contention of learned Counsel for the appellant that the Rule-Making Body Would have added the words 'by the trial Court' after the words 'have not been decided' if it intended to exclude the power of remand by the appellate Court in the event of that Court itself, either deliberately or otherwise, failing to decide all questions arising in the case, we would arrive at an equally impossible result. It has to be pointed out that Section 108 and Rule 1 of Order 42, Civil P.C. make it perfectly clear that the provisions of Rule 23 of Order 41 apply as much to the High Court when deciding a second appeal as it does to the lower appellate Court when hearing an appeal from a judgment and decree of the trial Court. In deciding a second appeal the High Court is bound by the findings of fact arrived at by the lower appellate Court. It is easily conceivable that all questions of fact arising in a case may have been decided by the trial Court but some of them may not have been considered by the appellate Court and if the High Court finds in a particular case that some questions of fact which are material for the decision of the second appeal have not been considered by the lower appellate Court, though they may have been decided by the trial Court, it is bound to remand the case to the appellate Court for its findings on those questions. If the Rule-Making Body had added the words 'by the trial Court' after the words 'have not been decided,' the High Court could not have exercised the power of remand in such a case. It is obvious that such a result could not possibly ' have been contemplated or intended by the Rule-Making Body. In my judgment it must be held upon a plain interpretation of the language of Rule 23 of Order 41 that the power of remand given to the appellate Court is limited by two conditions precedent one being that the decree of the trial Court is reversed and the second being that all questions arising in the case have not been decided by the trial Court. It was not even suggested in the course of argument before us that in the present case there were any 'questions arising in the case' which had not been decided by the trial Court. One of the two conditions precedent was, therefore, absent in the present case and an order of remand could not, therefore, be passed by the appellate Court under Rule 23 of Order 41. I, therefore, entirely concur in the view taken by my learned brother that the order of remand dated 17-4-1944, from which an appeal was filed in the present case, was not an appealable order, though being unjustified even on the merits it could be interfered with and set aside in the exercise of the revisional jurisdiction of this Court. My answer to the question referred to the Full Bench is, therefore, the same as that proposed by my learned brother.

Raghubar Dayal. J.

9. I have the advantage of reading the judgments of my learned brothers and regret that I am unable to agree with them about the answer to the question referred to the Full Bench.

10. The question referred to the Full Bench is-Does an appeal lie against the order of remand dated 17-4-1944?

11. An appeal lies against the order of remand in suit if this order comes within the purview of Order 41, Rule 23, C.P.C. If it does not fall under this rule, the order will be deemed to be an order under the inherent power of the Court and, therefore, non-appealable.

12. Order 41, Rule 23, C.P.C. as amended by this Court, stands thus:

Where an appellate Court has reversed a decree and all questions arising in the case have not been decided, it 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.

13. This rule authorises an appellate Court to remand a case when two conditions are satisfied. They are that the appellate Court reverses a decree and that all questions arising in the case have not been decided. The lower Court reversed the decree of the trial Court when it allowed the appeal and set aside the decree of the trial Court. The lower Court did not decide all the questions which had arisen in the case. The trial Court had decided all these questions. If the second condition merely refers to the non-decision of all the questions by the trial Court alone, the order under reference will not come under Order 41, Rule 23, C.P.C. But if the second condition includes non-decision of all the questions arising in the case by the appellate Court as well, the order under reference will come under this rule and will, therefore, be appealable. The rule itself does not mention the Court which leaves all the questions arising in the case undecided. I see no good reason why the second condition be interpreted to mean the non-decision of all the questions arising in the case by the trial Court alone. The words of the section do not lend themselves to such a conclusion only. In fact if all the questions are not decided by the trial Court, the appellate Court will practically in each case have to remand the case to the trial Court for a fresh decision. Cases may arise in which the trial Court has decided all the questions arising in the case and yet the appellate Court feels that it should order a retrial. It may think so far various reasons which cannot be always exhaustively imagined. When the words used in this rule are general and do not specify the Court which had not decided all the questions arising in the case, I am of opinion that it should be generally interpreted and should be taken to mean that up to the time of reversal of the decree by an appellate Court, there should remain some undecided questions which arose in the case and which required a decision irrespective of the fact whether those questions were not decided by the trial Court or were decided by the trial Court and were left undecided by the appellate Court. It may be undesirable that the appellate Court should not decide all the points and thus determine the case finally when the trial Court had given its findings on all the questions which had arisen in the case; but this consideration, however, does not justify giving a restricted interpretation to the rule.

14. Apart from this general expression of the rule which can justify the above interpretation, a comparison of the present rule as amended by this Court, with the original rule in the Civil P.C. tends to lead to the same inference. The original rule says:

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.

This language of the original rule referred to the conduct of the trial Court first and then to the result in the appellate Court, The rule, as amended by this Court, referes to the act of the appellate Court first and then refers to the non-decision of all the questions without specifying the Court which should leave some questions undecided. If the non-decision of some questions was meant to be non-decision by the Court against whose decree the appeal was preferred, the original rule need not have been amended so fully, but could have been amended by the alteration of a few words only. It could have been amended thus:

Where the Court from whose decree an appeal is preferred has disposed of the suit without deciding all the questions arising in the case and the decree is reversed in appeal, the appellate Court may, if it thinks fit, by order remand the case.

Such an amended rule would not have given rise to the contention now before us. I am, therefore, of opinion that the rule, as amended by this Court, just requires as a first condition, that a. decree be reversed in appeal, and as the second condition, that all the questions are not decided up to that time and, in these circumstances, gives a discretion to the appellate Court to remand the case.

15. Order 43, Rule 1(u), Civil P.C. was amended by this Court in 1926 and as then amended was

an appeal shall He under the provisions of Section 104, from any order remanding a case, where an appeal would lie from the decree of an appellate Court.

This shows that in 1926 this Court favoured an appeal from every order of remand. This rule was amended again in 1935 and, as then amended, it allows an appeal against an order under Rule 23 of Order 41, remanding a case where an appeal would lie from the decree of an appellate Court. Thus at present an appeal is allowed against a remand order which comes under the provisions of Order 41, Rule 23, Civil P.C. In 1935, this Court amended Order 41, Rule 23 also. The rule as amended has been quoted and discussed above. When this Court was of opinion in 1926, that an appeal be provided against all orders of remand, it may be that it was of the same opinion in 1935, and that it made amendments in 1935, as it found that the amendment of Order 43, Rule 1(u) in 1926 was not a valid amendment. Circumstances requiring remand of a case can be many and need not be exhaustively imagined at a time. A good number of such circumstances are noted under Note 20, Order 41, Rule 23, Civil P.C. in Chitaley's Civil P.C. 4th Edn. The amended It. 23 of Order 41, therefore, simply mentions that when all the questions arising in the case remain undecided and the decree is reversed, the appellate Court might remand the case.

16. There does not appear to me to be any great reason for thinking that this Court would not have intended to have given a free scope to the appellate Court to remand a case by its amended Rule 23 of Order 41, Civil P.C. I find that two other High Courts, the Madras High Court and the Lahore High Court, have given very wide powers to the appellate Court to remand the suits. These amendments are given in Chitaley's Code of Civil Procedure, 4th Edn. The Madras High Court amended Rule 23 of Order 41, thus:

Where a Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal or where the appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case, the appellate Court may by order remand the case....

The Lahore High Court has not actually amended Rule 23, but has added Rule 23A in Order 41, Civil P.C. This Rule 23A is:

Where a Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point and the decree is reversed in appeal and a retrial is considered necessary, the appellate Court shall have the same powers as it has under Rule 23.

17. The order of remand under reference does not specifically mention that it was being passed under Order 41, Rule 23, Civil P.C. It mentions that the caseo was being remanded in the interest of justice It does not necessarily follow from this consideration that the order of remand must be taken to be an order under theinherent powers of the Court below. If it comes under the provisions of Order 41, Rule 23, it will be treated to be an order of remand under that provision of law.

18. A contrary view has been taken in a number of a cases by the Oudh Chief Court which also amended Order 41, Rule 23, in identical terms. In none of them, the question has been discussed at length.

19. In Mt. Umrai v. Rahim Bux ('39) 26 A.I.R. 1939 Oudh. 157 the view of the Court is expressed just in these words:

The words used in the rule as amended make it, in our opinion, quite clear that for a remand to be under this rule there must have been a decree and there must have been something left undecided by the original Court.

20. The reason for remand in that case is so expressed in that judgment at p. 158:

The remand in this case was not because in the opinion of the learned Civil Judge, the learned Munsif had left something undecided which the appellate Court could not decide, but because the pleadings had not been made clear, proper issues had not been framed and facts had been gathered from evidence, mainly oral, without giving the parties full opportunity to rebut them with the result that the trial Court had made out a case totally different from the one arising out of the pleadings. In other words, the learned Civil Judge, came to the conclusion that one or both parties had been prejudiced and though everything had been decided it had been decided improperly.

These reasons would indicate that sometimes an appellate Court is not able to decide an appeal even when the trial Court has decided all the points and that it feels bound to remand the cast for a further hearing.

21. In Mt. Lachmin v. Bhairon Baksh Singh the opinion of the Court is expressed in these words:

The learned Counsel reads the words have not been decided as meaning have not been decided by the appellate Court.1 This interpretation is, in our opinion, entirely wrong. The amendment to our minds clearly refers to a decision of all the questions arising in the case by the trial Court and not to their decision by the appellate Court itself.

In Noor Mohammad v. Suleman Khan ('43) 30 A.I.R. 1943 Oudh. 35, the opinion of the Court was expressed in these words:

It is clear that this rule applies where an appellate Court has reversed a decree and all the questions arising in the case have not been decided by the Court of first instance.

The case reported in Mahabir Singh v. Pitamber Das ('44) 31 A.I.R. 1944 Oudh. 117 did not deal with this point. It took it for grant' ed that the questions should be left undecided by the trial Court and it considered that any new question raised in the appellate Court is not to be deemed as a question arising in the case for the purposes of Order 41, Rule 23, Civil P.C. 22. In Hari Saran Das v. Rudra Pratap Nrain Singh ('44) 31 A.I.R. 1944 Oudh. 130, the Court expressed no opinion on the question as to which Court should leave some questions undecided. The head note is, therefore, not fully correct, though the decision of the case proceeded on the view on this question current in the Chief Court. The case in Gagdish Singh v. Kateshar Singh ('45) 32 A.I.R. 1945 Oudh. 133, simply reiterates the same view. The only case of this Court in which the amended Rule 23 of Order 41 was referred to is the case reported in Shiam Sunder v. Venney Prakash ('42) I.L.R. (1942) All. 84. In that case a suit on a promissory note was instituted. The defence of the defendants was struck off on account of the non-compliance of the order of the trial Court awarding costs to the plaintiffs. An ex parte decree was consequently passed. The defendants appealed to the District Judge, who set aside the decree of the lower Court and remanded the case for re-hearing. The appellant then applied for the refund of the court-fees. The application was rejected on the ground that there was no provision in the Court-fees Act for refund of court-fees where a suit was not remanded under Order 41, Rule 23, Civil P.C. as Order 41, Rule 23 applied to a remand when the trial Court had decided a suit on a preliminary point only. The appellant then came in revision to this Court. This Court pointed out that the District Judge ignored the amendment made to Rule 23, p. 41, by this Court and observed:

There can be no doubt that the points raised by the pleas of the defendants in their written statements were not at all considered by the trial Court. The trial Court's judgment is contained in the following six words : 'Evidence recorded. Claim proved prima facie'. Having struck off the defence of the defendants the trial Court could not consider their pleas. That being so, it cannot be said that all questions arising in the tease have been decided. As. a matter of fact the questions which arose in the case from the written statement of the defendants have not been considered at all and the remand of the case therefore comes under Order 41, Rule 23, and under Section 13, Court-fees Act, the applicants are entitled to refund of their court-fee.

It appears to me that when the defence of the defendants had been struck off for any reason, the points arising out of that defence were not points arising in the case, and therefore the trial Court did decide all the points which had arisen before it. The remand order was, however, an order under Order 41, Order 23, as the appellate Court probably allowed the defence to be taken into consideration and consequently the points which arose out of the written statement became points arising in the case. However, this case does not decide the legal question before us.

23. I am, therefore, of opinion that an appeal lies against the order of remand dated 17-4-1944. I accordingly answer the question referred to the full Bench in the affirmative.

24. In accordance with the view of the majority our reply to the question propounded is that an appeal does not lie against the order of remand dated 17-4-1944.

25. This reply shall be placed before the bench which referred the question.


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