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V. Jambulayya Vs. I. Rajamma - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1913)ILR36Mad492
AppellantV. Jambulayya
Respondenti. Rajamma
Cases ReferredKuppalan v. Kunjuvalli
Excerpt:
civil procedure code (act v of 1908), order xli, rule 23 - decision of first court not on a preliminary point--power of appellate court to remand. - .....agreed that the matter should be disposed of on the construction of the receipt alone.2. the district judge appears to have seen the receipt and considered that it is not a record of the terms of a settlement between the parties, and holding that the plaintiff should be allowed to prove that the document represented only a partial settlement, he has remanded the suit for rehearing and disposal.3. before us it is contended that the district munsif having determined the issue as to the settlement has not disposed of the suit on a preliminary point, and that therefore the district judge had no power to order a remand.4. but the decision in kuppalan v. kunjuvalli (1911) 9 m.l.t. 373 is an authority for holding that there are cases in which an order of remand may be made even where the.....
Judgment:

1. The District Munsif appears to have looked at a receipt and construed it as a settlement out of court and upon it determined the issue whether the settlement after suit is true, but he did not exhibit it as evidence in the suit or take any other evidence. It is not now alleged that this course was taken by consent of the parties or that the parties agreed that the matter should be disposed of on the construction of the receipt alone.

2. The District Judge appears to have seen the receipt and considered that it is not a record of the terms of a settlement between the parties, and holding that the plaintiff should be allowed to prove that the document represented only a partial settlement, he has remanded the suit for rehearing and disposal.

3. Before us it is contended that the District Munsif having determined the issue as to the settlement has not disposed of the suit on a preliminary point, and that therefore the District Judge had no power to order a remand.

4. But the decision in Kuppalan v. Kunjuvalli (1911) 9 M.L.T. 373 is an authority for holding that there are cases in which an order of remand may be made even where the disposal has not gone on a point which can strictly be called a preliminary point, and this we think is one of those cases. Here there seems to have been no regular hearing of the matter and the evidence on which the disposal was made was not placed on the record. The procedure is so irregular that we think an order for a complete retrial is required and on that ground we confirm the decision of the District Judge and dismiss the appeal with costs.


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