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Kelu Mulacheri Nayar and ors. Vs. Chendu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1896)ILR19Mad157
AppellantKelu Mulacheri Nayar and ors.
RespondentChendu and ors.
Cases ReferredGanesh Bhikaji Juvekar v. Bhikaji Krishna Juvekar I.L.R.
Excerpt:
civil procedure code, sections 562, 566 - order of remand when legal--duty of appellate court when addition of parties and amendment of issues is necessary. - .....of the high court hearing a second appeal and that of a court hearing the first appeal ganesh bhikaji juvekar v. bhikaji krishna juvekar i.l.r. 10 bom. 398. the next contention on behalf of the respondents was that, as the subordinate judge found it necessary to direct that certain persons who had not been impleaded in the court of first instance be joined as parties to the suit, the proper thing to do was to remand the case. there is, however, nothing in section 562 to warrant this contention. in the circumstances of the case, the proper course for the subordinate judge was to join the person whom he found necessary as parties to the suit, to alter or amend the issues already framed, or frame fresh issues so as to raise all questions properly arising in the suit as it stands after.....
Judgment:

Subramania Ayyar, J.

1. As laid down in Ramachandra Joishi v. Hazi Kassim I.L.R. 16 Mad. 207 the condition necessary to a remand under Section 562 as the section now stands is the omission to determine the merits. This condition did not exist in the present case as the District Munsif had disposed of the case on the merits. The order of remand passed by the Subordinate Judge must, therefore, be held to be illegal. The case to which I was referred on behalf of the respondent is distinguishable from the present case, inasmuch as there the order of remand was passed by the High Court, which could not deal with the merits under Section 565, the provisions whereof have to be read with those of Sections 562 and 564. And these sections are under Section 587 applicable to second appeals only as far as may be. There is thus in the matter in question no analogy between the position of the High Court hearing a second appeal and that of a Court hearing the first appeal Ganesh Bhikaji Juvekar v. Bhikaji Krishna Juvekar I.L.R. 10 Bom. 398. The next contention on behalf of the respondents was that, as the Subordinate Judge found it necessary to direct that certain persons who had not been impleaded in the Court of First Instance be joined as parties to the suit, the proper thing to do was to remand the case. There is, however, nothing in Section 562 to warrant this contention. In the circumstances of the case, the proper course for the Subordinate Judge was to join the person whom he found necessary as parties to the suit, to alter or amend the issues already framed, or frame fresh issues so as to raise all questions properly arising in the suit as it stands after the addition of the said persons as parties, and refer them for trial to the District Munsif under Section 566 see the observations of the Judges in Ganesh Bhikaji Juvekar v. Bhikaji Krishna Juvekar I.L.R. 10 Bom. 398.

2. The order of the Subordinate Judge should, therefore, be set aside. The appeal should be restored to the file and proceeded with according to law.

3. The costs of this appeal will be costs in the cause.


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