1. This is an appeal from an order remanding a case in appeal. The plaint was filed so long ago as the 13th May 1910. The judgment of the Subordinate Judge in the Court of first instance is dated 31st May 1911 and the judgment now under appeal before us is dated the 15th April 1912. We are now at the end of January 1916. It is, in our opinion, very lamentable that this matter should be still undecided, more especially as, for the reason which we are about to give, there does not appear to have been any substance in the appeal,
2. It is contended, firstly, that inasmuch as the Court of first instance did not decide the case upon a preliminary point the order of remand ought to have been made under Order XLI, Rule 25, and that the Appellate Court should have kept the case on its own file. In this connection it is conceded that the irregularity cannot be given effect to unless the appellant was prejudiced by the procedure adopted; and in order to establish that he was so prejudiced, it is pointed out that two orders which are alleged to be erroneous in law were passed incidentally by the lower Appellate Court. The first was that three documents were admitted which had been rejected by the first Court as out of time, and the second was that the Judge has directed the plaintiff to add three persons as defendants before proceeding with the case.
3. Now curiously enough neither of these points has any substance in it. It is clearly found by the learned Judge in the Court of Appeal below that the documents were not out of time and his finding of fact entirely disposes of the question, and shows that the Subordinate Judge very improperly rejected these papers on one excuse on the 25th April 1911 and on another and wholly different excuse on the 26th April when a second attempt was made to file them. We need not go into details which are fully set out in the judgment of the lower Appellate Court.
4. As regards the second point we do not think that a somewhat confused sentence in the penultimate paragraph of the judgment was intended to mean that the burden of adding these defendants should be thrown upon the plaintiff. In another passage in the judgment the Judge clearly directed that they should be added and the case should proceed. We are clearly of opinion that Mr. Macleod was a necessary party. It is contended before us that the alleged landlord set up by persons whom the plaintiff seeks to eject need not be made a party to the suit, and certain judgments of the Judicial Committee are relied upon in which it is held that it is not necessary for the plaintiff in a suit for ejectment to make any one a party who is not in possession, merely because the defendant sets him up as his landlord. But these can easily be distinguished from the present case when it is found as a fact that there was a transfer of the tenancy right from the defendants to Mr. Macleod and as a fact that Mr. Macleod was rightly or wrongly admitted to the defendants' possession as tenants and that the defendants are holding under him as sub-tenants by paying him rent. Under the circumstances it is clearly not only necessary but to the interest of the plaintiff to get rid of Mr. Macleod.
5. As regards the other two persons Grobardhan and Indu whom the defendants put forward as their co-sharers, the adding of co-sharers as parties, when a retrial is necessary is a matter of discretion with the Court, and it is certainly to the interest of the plaintiff as well as to the interest of every one else that there should be some finality in this litigation and that all the co-sharers should be added.
6. This brings us to a reconsideration of the very first objection that the remand was incompetent in the form in which it is made. With all respect for the decision of the learned Judges in the case of Nabin Chandar Tripati v. Pran Krishna Dey 20 Ind.. Cas. 39; 41 C. 108; 18 C.L.J. 613, it may be pointed out that that decision differs from several previous cases by which we are bound and as the learned Judges declined to refer the question to a Full Bench, because they were of opinion that it did not directly arise, the case being disposed of OK another ground, it is not, therefore, an authority for the very general proposition that there is no other possible case of remand which is not included in Order XLI. Now this very matter of amendment of a plaint in an Appellate Court with the necessary addition of parties is on the face of it a case which cannot possibly fall under Order XLI, Rule 23 or Rule 25. It is not a decision on a preliminary point, therefore, it may be said that the whole case cannot be remanded, but it is not a case in which certain issues can be framed and certain additional evidence can be taken under Rule 25, for new parties having been added and the plaint having been amended the added defendants as well as the original defendants have a right to file fresh written statements and to have the whole case re-opened. It seems to have been overlooked that in the new Code of Civil Procedure the Legislature has given this power of amendment to the Court of Appeal; and it is a necessary outcome of that power that the Court must have the power of remanding the whole case when an amendment of plaint is granted in appeal and when parties are added. There is a general provision in Section 107, Civil Procedure Code, for a remand. The consideration which we have just pointed out must lead to the conclusion that that section is not governed or limited by Order XLI alone, but it is subject to such conditions and limitations as may be prescribed in the rules and Orders and the amendment of a plaint and addition of parties in a Court of Appeal is one of the conditions prescribed in the rules and Orders. Section 107, therefore, is just as much subject to that condition as it is to the conditions laid down in Order XLI.
7. We, therefore, hold, firstly, that this remand was not improperly made; secondly, that if it had been irregularly made it did not prejudice anybody; thirdly, that the District Judge would have been grossly wanting in his duty had he not admitted those three documents, and lastly that Mr. Macleod is a necessary party and that the Judge exercised a wise discretion in adding the alleged co-sharers Gobardhan and Indu.
8. The result is the appeal is dismissed with costs, three gold mohurs.