1. This is a revision petition against an order of remand passed by Mr. K. S. Ramaswami Sastri, District Judge of Ramnad, on 18th March, 1929, in A.S. No. 282 of 1926.
2. The learned Judge tabulated three points for decision, and decided them all except that he required a finding from the Lower Court as regards the yellow marked items on the suit map. This of course is provided for in Order 41, Rules 25 and 27. But the learned Judge has remanded the case 'in the exercise of his Court's inherent power.' No reason has been suggested for this surprising procedure), and the only reason which can be inferred from the record, that the quarter was closing and the Judge wished to add a disposal to his returns, is one which this Court would be loath to believe.
3. The question now is whether when the Code contains specific provisions which would meet the necessities of the case in question, such provisions should not be followed, instead of the inherent jurisdiction being invoked.
4. This point is very fully considered by Anantakrishna Aiyar, J., in Venkmnma v. Goparayu Perraju (1928) M.W.N. 164 and his statement of his opinion and of the authorities upon which it is based is one to which I can add nothing but my entire concurrence. In his Lordship's view it is not open to the Court to follow a procedure which is contrary to what the legislature has expressly pointed out to be the proper procedure, as when in Order 41, Rules 27 and 28 the legislature has given a specific direction.
5. But after thus stating his view the learned Judge holds that he is overborne by authority. He particularly refers to Sheikh Muhammad Maracayar v. Rengasami Naidu (1921) 16 L.W. 515. I find there that the Judges confessed to feeling the difficulty, but they deferred to Athappa Chetty v. Ramanatham Chetty (1919) 10 L.W. 359 : 37 M.L.J. 536 and Ghuznavi v. The Allahabad Bank, Ltd. I.L.R. (1917) Cal. 929 In Athappa Chetty v. Ramanatham Chetty (1919) 10 L.W. 359 : 37 M.L.J. 536 it is held that Courts have an inherent power of remand, but 'where a power is given expressly, Courts should not exercise their inherent power' For this view Ghuznavi v. The Allahabad Bank, Ltd. I.L.R. (1917) Cal. 929 and Jambulayya v. Rajamma I.L.R. (1912) M. 492 : 24 M.L.J. 512 are cited, Jambulayya v. Rajamma I.L.R. (1912) M. 492 : 24 M.L.J. 512 is only authority for what is now generally accepted, that when there has been no regular hearing of the matter the appellate Court by its inherent power may remand. Ghusnavi v. The Allahabad Bank, Ltd. I.L.R. (1917) Cal. 929 is direct authority for the rule that the inherent power must not be exercised when there is a specific provision in the Code, see page 936. The question propounded in this judgment follows the language of that passage.
6. Therefore it will be seen that Athappa Chetty v. Ramanatham Chetty (1919) 10 L.W. 359 : 37 M.L.J. 536 which the Judges in Sheikh Muhammad Mararayar v. Rengasami Naidu (1921) 16 L.W. 515 thought was authority for permitting the Court to remand when there was a specific provision in Order 41, Rule 27, is authority for precisely the contrary view. The mistake has crept in by careless headnoting. The Judges in Aathappa Chetty v. Ramanatham Chetty (1919) 10 L.W. 359 : 37 M.L.J. 536 said: 'Where a power is given expressly, Courts should not exercise their inherent power which ought to be very cautiously indented upon.' The headnote changes this to, 'where express powers are also given, the Courts should be very cautious in resorting to their inherent powers' 10 L.W. 359. And so 'should not' has become 'should cautiously.' And then when one goes behind Athappa Chetty v. Ramanatham Chetty (1919) 10 L.W. 359 : 37 M.L.J. 536 to what is undoubtedly the leading case in this matter, the Full Bench Calcutta decision, the headnote is both correct and clear. 'Inherent jurisdiction must be exercised with care, subject ... to the condition that the matter is not one with which the Legislature has so specifically dealt as to preclude the exercise of inherent power.'
7. In this state of the law I feel neither bound by Sheikh Muhammad Maracayar v. Rengasami Naidu (1921) 16 L.W. 515 nor constrained to refer the matter to a Full Bench. It would indeed be strange if a Full Bench were assembled to decide whether when there is a clear provision in the Code of Civil Procedure, the Judge by virtue of his inherent power may take up his pen and write a new rule for his personal use. Nor have I any hesitation in finding that the District Judge acted with material irregularity.
8. The order of remand is cancelled, and the Trial Court is directed to submit a finding to the appellate Court within six weeks of receipt of this order on the issue--What is the value of the yellow marked portions. The appellate Court will then dispose of the appeal.
9. A further question arises whether fresh evidence should be adduced. It appears that the parties had ample opportunity of producing evidence on this point which they undoubtedly knew to be material to the suit, and to call for fresh evidence after this long lapse is only an encouragement to perjury. The District Munsif must confine himself to the present record.
10. Costs of this Civil Revision Petition will be costs in the cause.