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A. Chelmayya Vs. A. Lakshmi Devamma and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtChennai
Decided On
Reported inAIR1925Mad171
AppellantA. Chelmayya
RespondentA. Lakshmi Devamma and ors.
Cases ReferredRaman Nayar v. Krishnan Nambudripad A.I.R.
Excerpt:
- - it is clearly the policy of the law that when any question of jurisdiction is raised, it should be raised in the court of first instance at the earliest stage and that it should be given effect to by the appellate court only if there has been prejudice caused by the trial in the first court the point of jurisdiction was raised in the first court in this case and the district munsif has given his finding on it though he has given no reasons for it. we are clearly of opinion that the order of remand being an order which the lower appellate court was incompetent to pass we can interfere in revision if an appeal does not lie......has not given any reasons for thee conclusion that he came to in favour of the plaintiffs on those issues. on appeal, the subordinate judge treated the case as if it had been disposed of on a preliminary point, set aside the decree of the lower court and all the findings which it had come to and remanded the case for fresh decision after a fresh trial.3. we think that the order of the subordinate judge cannot be supported. in the first place, the order set aside the findings of the district munsiff on questions of fact on the various issues for which he had given reasons without those reasons or the evidence on which they were based being, considered. we think that this was an improper procedure. in the second place, we do not think that the order of remand was proper order under order.....
Judgment:

1. This is an appeal against an order of remand by the Subordinate-Judge of Kistna. The objection taken before us to it is that the order of remand was incompetent and that it should be set aside. What happened was the Munsiff tried the whole of the suit recording evidence on all the issues framed in the case. There were altogether eleven issues, ten issues orginally framed and one additional issue. He gave findings on all the issues except the eleventh issue, namely, the additional issue. But in doing so he gave reasons and discussed the evidence only as regards issues 2,4 and 10 but as regards issues 5 to 9 he merely recorded:

I find the issues for the plaintiff.

2. He has not given any reasons for thee conclusion that he came to in favour of the plaintiffs on those issues. On appeal, the Subordinate Judge treated the case as if it had been disposed of on a preliminary point, set aside the decree of the lower Court and all the findings which it had come to and remanded the case for fresh decision after a fresh trial.

3. We think that the order of the Subordinate Judge cannot be supported. In the first place, the order set aside the findings of the District Munsiff on questions of fact on the various issues for which he had given reasons without those reasons or the evidence on which they were based being, considered. We think that this was an improper procedure. In the second place, we do not think that the order of remand was proper order under Order 41, Rule 23.

4. All the evidence having been taken the Subordinate Judge might have acted under Order 41, Rule 24 or if he desired to get reasons from the Munsif on the issues for which he had not given reasons, he might have acted under Order 41, Rule 25 and asked the Munsiff to try those issues and send up fresh findings on them. Instead of adopting that course, what he did was to reverse the decree altogether.

5. The order has been tried to be supported by the learned Vakil for the respondent on the ground that this was an order passed not under the Civil Procedure Code but under the inherent jurisdiction of the appellate Court. It has also been argued that the respondent would be greatly prejudiced if we make an order remanding the appeal to the Subordinate Judge because he would not be able to give effect to the objection that the respondent raised in issue 7 as regards the jurisdiction of the first Court; the learned Vakil says that under Section 11 of the Suits Valuation Act, he could not properly urge that ground as a ground of attack against the decree of the first Court in the appellate Court unless he is able to show that he has been prejudiced by the trial of the case in the Munsif's Court which apparently he thinks he would be unable to do.

6. We do not think that this is any ground for supporting the order of the lower Appellate Court. It is clearly the policy of the law that when any question of jurisdiction is raised, it should be raised in the Court of first instance at the earliest stage and that it should be given effect to by the appellate Court only if there has been prejudice caused by the trial in the first Court the point of jurisdiction was raised in the first Court in this case and the District Munsif has given his finding on it though he has given no reasons for it.

7. It is not the policy of the law to allow this kind of objection to be raised in appeal by the parties except under very restricted conditions. We do not think that the order of remand can be justified on the ground that the party appealing would be prejudiced in not being able to raise such an objection in the appellate Court and, therefore, the first Court should be made to try the case once again to give effect to it. As contended by the learned Vakil for the respondent, there is no legal prejudice in the matter at all considering the policy of the law underlying Section 11 of the Suits Valuation Act.

8. It has also been contended that this appeal does not lie because the Subordinate Judge must be taken to have acted in the exercise of his inherent jurisdiction. After the Full Bench Ruling in Raman Nayar v. Krishnan Nambudripad A.I.R. 1922 Mad. 505 it is very doubtful whether the Court has got any inherent jurisdiction in the matter, but we do not decide that point because there is also a civil revision petition filed. We are clearly of opinion that the order of remand being an order which the lower Appellate Court was incompetent to pass we can interfere in revision if an appeal does not lie.

9. We must, therefore, set aside the order of remand passed by the Subordinate Judge and direct him to restore the appeal to his file and to dispose of the case according to law. Costs of the miscellaneous appeal and the Civil Revision, Petition will both abide and follow the result in the lower Appellate Court.


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