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Pillamkattil Nallampurakkal Raman's son Kuppelan Vs. K.N. Kunjuvalli and Ors. (17.02.1911 - MADHC) - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in9Ind.Cas.790
AppellantPillamkattil Nallampurakkal Raman's son Kuppelan
RespondentK.N. Kunjuvalli and Ors.
Cases ReferredRamachandra Joishi v. Hassi Kassim
Excerpt:
.....order xli, rule 23 - order of remand--preliminary point. - - but we are not satisfied that the district judge had no power to remand a case except on a point which can strictly be called preliminary. furthermore, the omission of any proviso like that of section 564 of the code of 1882 from the new code will tend to show that the legislature did not intend to confine the powers of an appellate court to remand cases to the first court for disposal to cases in which the first court has disposed of a suit on a preliminary point properly so called. rosario then argues that the finding of the district judge that the will of pachi is genuine in reversal of the finding of the district munsif to the contrary is bad, inasmuch as the district judge has not given due weight to the opinion of the.....1. the first point taken by mr. rosario is that the decision of the district munsif on the question of the genuineness of the will not being one on a preliminary point, it was not competent for the district judge to set aside the district munsif's judgment and to remand the case for trial on the other issues. it is not always easy to say what is or is not a preliminary point, but we are inclined to agree with mr. rosario that the question on which the district munsif disposed of the case, involving as it does an important issue relating to the merits of the plaintiff's case was not a preliminary question. but we are not satisfied that the district judge had no power to remand a case except on a point which can strictly be called preliminary. even the case relied on by mr. rosario,.....
Judgment:

1. The first point taken by Mr. Rosario is that the decision of the District Munsif on the question of the genuineness of the Will not being one on a preliminary point, it was not competent for the District Judge to set aside the District Munsif's judgment and to remand the case for trial on the other issues. It is not always easy to say what is or is not a preliminary point, but we are inclined to agree with Mr. Rosario that the question on which the District Munsif disposed of the case, involving as it does an important issue relating to the merits of the plaintiff's case was not a preliminary question. But we are not satisfied that the District Judge had no power to remand a case except on a point which can strictly be called preliminary. Even the case relied on by Mr. Rosario, Ramachandra Joishi v. Hassi Kassim 16 MP. 207, shows that in such matters the discretion of the Court is not altogether excluded. Furthermore, the omission of any proviso like that of Section 564 of the Code of 1882 from the New Code will tend to show that the Legislature did not intend to confine the powers of an Appellate Court to remand cases to the first Court for disposal to cases in which the first Court has disposed of a suit on a preliminary point properly so called.

2. We think, therefore, the first ground of appeal fails.

3. Mr. Rosario then argues that the finding of the District Judge that the Will of Pachi is genuine in reversal of the finding of the District Munsif to the contrary is bad, inasmuch as the District Judge has not given due weight to the opinion of the District Munsif who had the advantage of watching the witnesses give their evidence. But the District Judge appears to have considered the evidence as to the execution of the Will with care and has given sufficient reasons for coming to a different conclusion from that of the District Munsif.

4. The appeal is dismissed with coats.


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