1. This is an appeal against an order or remand by the Lower Appellate Court and the preliminary point is taken that no appeal lies. The suit was for the restoration of a certain bund by the defendants, and the plaintiffs went to trial before the Munsif on the following issues:
1. Whether the plaintiffs are entitled to have the bunds?
2. Whether the defendants were justified in removing the bund?
3. To what relief?
2. The Munsif decreed the suit. On appeal to the Subordinate Judge, he found that the appeal could not be satisfactorily disposed of in the absence of certain findings. He therefore reversed the Munsif's decision, settled fresh issues and remanded the suit for a fresh disposal by the Munsif's Court.
3. The appeal is brought under Order 43, Rule 1, Clause (a) which allows an appeal from an order under Order 41, Rule 23. The latter is obviously inapplicable here and it is hardly contended that the suit was disposed of by the Munsif on a preliminary point. It is argued that the remand of the whole suit was incompetent and that the Subordinate Judge ought to have proceeded under Order 41, Rule 25, and called for findings while retaining the suit on his own file. It was held in Anthappa Chetty v. Ramanathan Chetty : (1919)37MLJ536 a judgment to which I was a party) largely on the authority of Ghuznavi v. The Allahabad Bank, Ltd., that an Appellate Court has an inherent power of remand under Section 151, Code of Civil Procedure, apart from Order 41, Rule 23, and that no appeal lies against an order made in exercise of this power. I adhered to this decision in Sheikh Muhammad Maracayar v. Rangasiuami Naidu and am not prepared to reconsider the matter so far as I am concerned. I may add that my view is supported by Radhakrishna Rao v. Venkata Rao. There is therefore no appeal in this case.
4. We are then asked to treat this as a revision petition under Section 115, Code of Civil Procedure. The same position arose in Sheikh Muhammad Maracayar v. Rangastvami Naidu where it was argued that the Subordinate Judge should have proceeded under Order 41, Rule 27. We held there that as in Anthappa Chetty v. Ramanathan Chetty : (1919)37MLJ536 , there was, if anything, only an improper use of a power (i.e., the inherent power) legally possessed, and that there was no question of jurisdiction. The same view appears to have prevailed with the Lahore High Court Wisahu Ram v. Alwal where the learned Judges held that the plaintiff could impugn the order of remand, if so advised, in second appeal. It is well established that the Court will not exercise its powers of revision if another remedy is open to the petitioner. The case of Venkatarama Aiyar v. Sundaram Aiyar is cited for the proposition that the Court 'had no jurisdiction to remand the entire case, but the Munsif ought to have been directed to take and submit further evidence. The learned Judges do not deal with the inherent power of the Court and none of the cases cited above seems to have been referred to, as far as appears from the judgment. The order of the Subordinate Judge there is said to be inconsistent; the whole case was remanded though only two issues were ordered to be retried on which the Subordinate Judge desired further evidence though the Trial Court had considered those issues on the evidence and recorded findings thereon. I think this case must be confined to its special facts. In the case before us it appears to me obvious that no satisfactory result could be obtained from going to trial on the issues as framed by the Munsif. Under the circumstances I see no reason why the Subordinate Judge should be called upon to practically try the case de nova on appeal.
5. In my opinion the Subordinate Judge acted within his powers, and there is no question of jurisdiction. As stated if is clear that no appeal lies in a case of this sort. On both grounds therefore the preliminary objection must be upheld and the appeal dismissed with costs.
The order of remand which is the subject of this appeal clearly was not made under Order 41, Rule 23, because the Trial Court had not disposed of the suit upon a preliminary point. Accordingly Order 43, Rule 1(a), which allows an appeal against an order passed under Order 41, Rule 23. has no application. No other provision of law enabling an appeal having been shown, it must be held that no appeal lies.
6. Assuming that we shall be prepared to treat the appeal as a petition for revision under Section 115, Code of Civil Procedure, it must be shewn that that the Appeliate Court, in remanding the suit for fresh disposal, exercised a jurisdiction not vested in it by law. In other words, is the power of the Court to remand a suit for disposal limited to the case provided for by Order 41, Rule 23, viz., where the Trial Court has disposed of it upon a preliminary point? This question was considered by a Full Bench of the Calcutta High Court consisting of five Judges Ghuznavi v. The Allahabad Bank, Ltd. and the conclusions they came to were briefly these: Section 107 of the Code, which gives an Appellate Court a power of remand, gives it only 'subject to such conditions and limitations as may be prescribed.' 'Prescribed' means, of course, prescribed by rules under the Code, and there was some difference of opinion as to whether, since Rule 23 of Order 41 provndes for a remand in a particular set of circumstances, the section empowered a Court to remand in any other circumstances. Mookerjee, J., was inclined to hold that it did, but the preponderance of opinion favoured the view that it did not, and it appears to me, if I may respectfully say so, that Woodroffe, J., defines the position correctly in what he says upon this point. Accepting this view, it follows that the course adopted by the learned Subordinate Judge is a course not expressly authorised by the Code and can only be justified, as the Calcutta Full Bench justified it, as comprised among the Court's inherent powers. I must confess with some considerable hesitation in relying upon Section 151 for this purpose. Where the Code contains specific provisions in any department of procedure it is not ordinarily permissible to follow a procedure which might have been, but has not been, included in those provisions. Rule 25 of (). 42 does not provide for a case, like the present, where the issues have been defectively framed by the Trial Court, and it requires that the original Court shall try the issues framed by the Appellate Court and shall return its findings upon them. It is an objection not very easy to meet that the learned Subordinate Judge should have dealt with the case according to this rule, and had no jurisdiction to deal with it otherwise. He should, it may be said, have called for findings upon his issues, and should not have remanded the suit for disposal upon them.
7. Apart, however, from the considerable body of authority in this as well as in other Courts in favour of the opposite view, I think that there are cases, and that a case of the present kind is one, in which the ends of justice are usually better served by adopting the course now called in question. When a District Munsif has mishandled a case and the Appellate Court has had to lay down the lines upon which it should be dealt with, it is ordinarily in the interests of the parties that the case should be remitted to the Lower Court for disposal rather than that the Appellate Court should undertake the Lower Court's functions and pronounce judgment upon submitted findings. That has been my experience as a District Judge, and having myself had occasion to remand cases for further trial and disposal, and so to realise the usefulness of the power, I should hold with much regret that it was not a power which an Appellate Court could legally exercise. It occurs to me as a curious anomaly that although criminal procedure is in general less flexible than civil proceedings a Criminal Appellate Court should possess the power to order a retrial which is not conceded in terms by the Civil Procedure Code. These observations apply where, as here, the whole case is reopened by the remand order, not where one or more additional issues are framed and sent down for a finding. It was a case of the latter description that was dealt with in Venkatrama Aiyar v. Sundaram Aiyar. Accordingly I do not feel compelled to dissent from the view that a power inheres in the Court to make an order of the kind under consideration where it deems such an order necessary for the ends of justice. And if it has jurisdiction, it is not open to us to go into the merits and decide whether or not it was properly exercised.
8. I agree therefore that we should not treat the appeal as a revision petition and allow it, and that the appeal itself should be dismissed with costs.