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Kewal Ram Vs. Mihi Lal Ram Khiloni - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1541 of 1956
Judge
Reported inAIR1960All655
ActsCode of Civil Procedure (CPC) , 1908 - Sections 99 and 151 - Order 41, Rule 23; Uttar Pradesh Code of Civil Procedure (CPC) (Amendment) Act
AppellantKewal Ram
RespondentMihi Lal Ram Khiloni
Appellant AdvocateK.C. Saksena, Adv.
Respondent AdvocateB.R. Avasthi, Adv.
Excerpt:
civil - inherent power to remand - sections 151, 99 and order 41 rule 23 of code of civil procedure,1908 - appellate court - remand a case - if production of evidence prevented unlawfully. - - but it did not apply its mind to the question why the defendant had failed to prove it at the trial......the defendant orally. the trial court believed the defendant's case and dismissed the plaintiff's suit. on appeal the learned judge observed that the trial court had taken into consideration a personal diary of the defendant which purported to show that he was not present in the plaintiff's town on the date when he is alleged to have given the oral instructions set up by the plaintiff.but it was noted that this diary, though purporting to have been written by the defendant in the ordinary course of his business and therefore relevant, had not been proved according to law. holding that the diary amounted to a vital piece of evidence, he took the view that an opportunity should be given to the defendant to prove the diary and to the plaintiff to cross-examine the defendant and' lead.....
Judgment:
ORDER

S.S. Dhavan, J.

1. This is a plaintiff's revision under Section 115 C. P. C. against an order of the learned Civil Judge, Etah reversing the decree of the trial court and remanding the suit for retrial. The plaintiff Kewalram filed a suit against the defendant respondent Mihilal Ram Khiloni for the recovery of certain sums which were alleged to be due to him as losses incurred on behalf of the defendant in making certain Arhati transactions on behalf of the defendant. The plaintiff claimed to have acted as the defendant's agent. The defence was that the plaintiff had disobeyed the express instructions, which, if carried out, would not have resulted in the alleged losses. According to the defendant, the market was falling and the plaintiff sold the stock of sugar which was the subject matter of Arhati transactions after wilful delay and had to thank himself for the losses.

The plaintiff denied that he received any such instructions to unload the stock without delay and pleaded that he had, on the contrary, received some other instructions from the defendant during a personal visit. These instructions were alleged to have been given by the defendant orally. The trial court believed the defendant's case and dismissed the plaintiff's suit. On appeal the learned Judge observed that the trial court had taken into consideration a personal diary of the defendant which purported to show that he was not present in the plaintiff's town on the date when he is alleged to have given the oral instructions set up by the plaintiff.

But it was noted that this diary, though purporting to have been written by the defendant in the ordinary course of his business and therefore relevant, had not been proved according to law. Holding that the diary amounted to a vital piece of evidence, he took the view that an opportunity should be given to the defendant to prove the diary and to the plaintiff to cross-examine the defendant and' lead evidence in rebuttal. He, therefore, allowed? the appeal and remanded the case to the trial court for a rehearing. Against this decision the plaintiff has come to this Court in revision.

2. Mr. B. R. Avasthi, on behalf of the defendant-respondent raises a preliminary objection that no revision under Section 115 C. P. C. can be entertained against this order. He contends that the appellate court which had inherent power to remand the case, has done so in the exercise of this power. He argued that this Court cannot interfere with the exercise of this discretion even if it holds that it was wrongly exercised.

3. Mr. K. G. Saksena, on behalf of the plaintiff-appellant contends, On the other hand, that the order of remand was without jurisdiction. According to him, the appellate court has no inherent power to remand a case except to the limited extent permitted by Order 41 Rule 23 C. P. C. Mr. Saksena, however, conceded that there was no direct authority of this Court in which it has been held that there is no inherent power of remand, but he pointed out that there is also no reported decision that such a power exists. There is no direct decision of this Court on this point. After hearing learned counsel on both sides, I am of the opinion that the appellate court has an inherent power to remand a case.

This view derives indirect support from the language of Section 99 of the Code which provides that no decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on ao count of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court. This section contains a warning to the appellate court not to exercise its powers of remand on account of any misjoinder of parties or causes of action or any other error, defect or irregularity in the trial of the suit. This prohibition would have been unnecessary unless the legislature thought that the Court has an inherent power of remand which had to be curbed. The words of Order 4l Rule 23 of the Code, as amended by this Court, also suggest that the Court has an inherent power of remand. The relevant part of this rule provides :

'23, Remand of Case by Appellate Court. When the Court from whose decree an appeal is preferred has disposed of the suit on a preliminary point and the decree is reversed on appeal, or wherethe appellate Court while reversing or setting aside the decree under appeal considers it necessary inthe interests of justice to remand the case, it may further direct. ........'

Thus it is presumed under this rule that the appellate Court has the power to remand any case in the interests of justice. I am fortified in this view by a decision of a Full Bench of the Calcutta High Court in Ghuznavi v. The Allahabad Bank Ltd., ILR 44Cal 929 : (AIR 1917 Cal 44). I hold that the Court had the power to remand the case.

4. However, I am of the opinion that the appellate Court committed a material irregularity in the exercise of this power. The learned Judge set aside the decree and remanded the case to enable the defendant to prove a particular document. But it did not apply its mind to the question why the defendant had failed to prove it at the trial. Unless the appellate Court holds that a party was unlawfully prevented from producing its evidence, it cannot put the blame on the trial Court or set aside its decree merely on the ground that evidence which should have been led was not led by a party. There was, therefore, no valid ground to set aside the] decree. The order of the appellate Court cannot stand.

5. I have now to consider what order should be passed in the interests of justice. It is true that the appellate Court could not hold the trial Court responsible for an omission by a party to the suit.

6. But there was nothing to prevent the appellate Court itself, in the exercise of its powers under Order 41, Rule 27, to call for fresh evidence and allow the defendant in appeal to produce fresh evidence, documentary or oral. I see no reason why the appellate Court should not be directed to do this even now. Learned counsel for the applicant conceded that the appellate Court has the power to 'hear fresh evidence.

7. I, therefore, allow this application andquash the order of the appellate Court setting aside the decree and remanding the case. J, however, remand the case to the appellate Court with a direction that that Court shall rehear the appeal and proceed to do what it had directed the trial Court to do. Both the parties shall be permitted to lead such evidence as the appellate Court within its discretion may permit. In the circumstances of the case there shall he no order as to costs of this revision.


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