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Firm Multanmal Bachraj Vs. Chouthmal Oswal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No 26 of 1971
Judge
Reported in1974WLN502
AppellantFirm Multanmal Bachraj
RespondentChouthmal Oswal
DispositionApplication allowed
Cases Referred and Purshottam v. Jeshvadabai
Excerpt:
.....court is not justified in not giving decision on merits of the case and sending it back to the trial court for giving decision.;in the present case the learned first appellate court has committed a material irregularity in exercise of its jurisdiction in remanding the case in a rather arbitrary fashion. - - 2. the contention of the leraned counsel for the petitioner is that the, learned civil judge bad no jurisdiction to remand the case and in any view of the matter he acted illegally and with material irregularity in the exercise of his jurisdiction in sending the case back to the trial court. it is a matter of daily occurrence that as the case goes before a higher court there is better preparation on the part of the members of the bar and a greater probe into case law with the.....c.m. lodha, j.1. this is a revision application by the plaintiff against the judgment of the civil judge, balotra dated 1-10 1971 by which the learned judge set aside 'he judgment and decree by the munsiff, balotra dated 25 8-1970 and remanded the case to the latter to give a fresh judgment after hearing arguments.2. the contention of the leraned counsel for the petitioner is that the, learned civil judge bad no jurisdiction to remand the case and in any view of the matter he acted illegally and with material irregularity in the exercise of his jurisdiction in sending the case back to the trial court.3. in view of the short point involved in the case as to the jurisdiction of the first appellate court to remand the case, i do not consider it necessary to state in detail the facts giving.....
Judgment:

C.M. Lodha, J.

1. This is a revision application by the plaintiff against the judgment of the Civil Judge, Balotra dated 1-10 1971 by which the learned Judge set aside 'he judgment and decree by the Munsiff, Balotra dated 25 8-1970 and remanded the case to the latter to give a fresh judgment after hearing arguments.

2. The contention of the leraned Counsel for the petitioner is that the, learned Civil Judge bad no jurisdiction to remand the case and in any view of the matter he acted illegally and with material irregularity in the exercise of his jurisdiction in sending the case back to the trial court.

3. In view of the short point involved in the case as to the jurisdiction of the first appellate court to remand the case, I do not consider it necessary to state in detail the facts giving rise to the suit. Suffice it to say that the defendant used to purchase goods from the plaintiff-firm from time to time and the plaintiff firm used to maintain a regular account of the goods sold by it and the amounts received from the defendant in lieu of the price of the goods. The plaintiff filed a suit for recovery of Rs. 1650/- including interest against the defendant on the basis of the accounts maintained by it. The defendant resisted the plaintiff's claim and pleaded a set off as a result of which he claimed a decree for Rs. 895 41 paisa. The defendant's counter claim was dismissed as barred by time and thereafter the trial court proceeded to record the evidence and ultimately decreed the plaintiff's suit as prayed.

4. Aggrieved by the judgment and decree of the trial court the plaintiff filed appeal. It may be stated here, that he did not make any grievance in the appeal regarding the dismissal of his counter claim. After hearing arguments, the learned Civil Judge, as already stated above, sent the case back to the trial court, the reason being that certain rulings had been cited before him which may be considered by the trial court and a fresh decision be given after taking into consideration those rulings.

5. Leraned Counsel for the petitioner urged that there being specific provisions for remand in the Civil Procedure Code i.e. Order 41, Rule 23, Order 41, Rule 25, and Order 41, Rule 27 the appellate court had no jurisdiction to remand the case in exercise of its inherent powers under Section 151 Civil P.C. It is urged that this is a typical case where the learned Judge has shirked his duty and instead of deciding the appeal on merits has chosen the easy way of shunting the case back to the trial court. It is contended that in any view of the matter the appellate court acted illegally and with material irregularity in exercise of his jurisdiction, and, therefore, a case for interference under Section 115(c) Civil P.C. is made out. In support of his contention he has relied upon Mahendra v. Sushilla : [1964]7SCR267 , Thakur Laxmansingh v. Thakur Raj Jujar Singh ILR 3 Raj 525, Hemsingh v. Motisingh AIR 1955 Raj 127, Roop Narain v. Mahabir Prasad ILR 5 Raj 492, Punjab National Bank v. Diwan Chand AIR 1931 Lah. 302, Kunha Mina v. Kunhipathumma AIR 1935 Mad 715, Purshottam v. Yeshvadabai AIR 1935 Bom 216, Harak Chand v. The State of Rajasthan 1970 RLW 320.

6. On the other hand leraned Counsel for the non-petitioner submitted that the order of the lower court even if erroneous in law cannot be interfered with in revision as the court below had jurisdiction to remand the case, and even if he did so wrongly, it cannot be a sufficient ground for interference in revision. In support of his submission he placed reliance on M.L. Sethi v. R.P. Kapur : [1973]1SCR697 , Hindustan Aeronautics v. Ajit Prasad : (1972)ILLJ170SC and Brijnandan v. Jadunandan : AIR1960Pat41 .

7. Having had a full dress debate on the point on the last date of hearing, to-day, when the case is set down for dictation of judgment, leraned Counsel for the non-petitioner submitted that he had no objection to the revision being allowed, and the case being sent back to the first appellate court for decision of the appeal on merits. However, inspite of this concession, I think it proper to make a few observations for guidance of subordinate courts in such matters.

8. It may be pointed out that the only ground relied upon by the learned first appellate court for remanding the case is that a number of rulings had been submitted before him which deserved to be considered by the trial court first so that the appellate court may have advantage of the view of the trial court in this regard. It is not a case where the trial court had giver its judgment without considering the evidence placed before it, for it is a case where the trial court has emitted to give decision of any point or has omitted to frame any issue on any material point of controversy nor it is a case where any error of procedure has been committed by the trial court so as to cause prejudice to either party. It is a matter of daily occurrence that as the case goes before a higher court there is better preparation on the part of the members of the Bar and a greater probe into case law with the result that certain more authorities are cited at the bar and certain more points are brought out. But for that reason alone, the appellate court is not justified in not giving decision on merits of the case and sending it back to the trial court for giving a fresh decision.

9. For the purpose of this case, it. is hardly necessary to decide the question whether an appellate court has inherent power to remand a case under Section 151 Civil P.C. as I am firmly of the view that even if it be assumed for argument's sake that it has such power, I have no doubt, that in the present case the learned first appellant court has committed a material irregularity in exercise of its jurisdiction in remanding the case in a rather arbitrary fashion. Some of the authorities relied upon by the leraned Counsel for the petitioner to mention two of them: Kunha Mina v. Kunhapathumma AIR 1935 Mad 715 and Purshottam v. Jeshvadabai AIR 1935 Bom 216 do furnish a parallel example where on account of the appellate court not being able to make up its mind or for such other similar reason the case was remanded and the procedure adopted by the first appellate court was struck down by the High Court on the ground that it was a case of exercise of jurisdiction with material irregularity.

10. In the result, I allow this revision application, set aside the judgment by the learned Civil Judge, Balotra dated 1-10-1971 and send the case back to him with a direction to restore the appeal to its original number and decide it on merits; Costs of this revision will abide the result.


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