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Faizunnessa Bibi and Khairunnessa Bibi and ors. Vs. Abrahim Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1890)ILR17Cal169
AppellantFaizunnessa Bibi and Khairunnessa Bibi and ors.
RespondentAbrahim Khan and ors.
Cases ReferredBadam v. Imrat I.L.R.
Excerpt:
remand - procedure on remand--practice--appeal from remand order--civil procedure code (act xiv of 1882), sections 562, 588, clause 28. - .....does not apply, and that is the course i propose to observe in the present instance.7. in these cases the points tried by the munsif (who evidently did not consider them preliminary points) touched the merits of the cases. the lower appellate court could not, therefore, legally remand these cases under section 562, because section 564 prohibits an appellate court from doing so, except under the circumstance prescribed by section 562. what the court ought to have done if it thought any further enquiry or further evidence necessary to enable it to come to a decision, was to have complied with section 566, keeping the bases on its own file.8. this being my opinion, i set aside the order of remand under section 562, and send these cases back to the lower appellate court. that court must.....
Judgment:

Tottenham, J.

1. These are appeals against orders of remand purporting to have been made by the Lower Appellate Court under Section 562 of the Code of Civil Procedure. That section provides that if the Court against whose decree the appeal is made has disposed of the suit upon a preliminary point, and the decree upon such point is reversed in appeal, the Appellate Court may, if it thinks fit, remand the case, and direct the lower Court to proceed to investigate the case on the merits.

2. The suits were to recover mesne profits in respect of land of which the plaintiffs had been dispossessed, and for which apparently they had obtained possessory decrees.

3. The first Court laid down various issues: in one case six, and in the other eight; and having tried most of those issues, it dismissed the suits apparently upon their merits. The issue the first Court did not try was as to the amount of mesne profits the plaintiffs were entitled to recover. The findings upon some of the other issues being sufficient for the dismissal of the suits, the Munsif thought it unnecessary to try this last issue.

4. The plaintiff's appealed; and the Lower Appellate Court having set out the various issues arising in the two cases, proceeded to give its decision upon them seriatim. The result was that all the issues decided by the Munsif against the plaintiff's were decided by the Lower Appellate Court in favour of the plaintiff's. The Lower Appellate Court, thereupon, remanded the cases to the Munsif under Section 562 with reference to the issue as to the amount of mesne profits which the plaintiff's might have been entitled to recover, upon the ground that the judgment of the Court below on the preliminary points dealt with must be set aside, and the evidence on the record did not enable the Lower Appellate Court to come to a decision on the merits, the merits being the amount of mesne profits.

5. Against this order of remand these appeals have been preferred. The arguments occupied a considerable time, not apparently because there has been any difference of opinion on either side, or any doubt in the mind of the Court that the order was obviously unsustainable, but because the learned pleader for the appellant wished the Court to go beyond what is usually done in similar cases, and to allow him to enter upon the merits throughout with a view to show that the Lower Appellate Court was wrong in its decision upon the several issues that it had considered. Ultimately, the learned pleader did not press us to restore the judgment of the first Court by which the suits were dismissed, but said that he would be satisfied if we simply set aside the order of remand, and all the observations made by the Court in its order.

6. In dealing with the first part of the argument, the learned pleader for the appellants laid before us many authorities of this Court and of the Allahabad and Bombay High Courts, to show that, where an appeal is made against an order of remand under Section 562, the High Court is not limited to the consideration of the form of the order to see whether it is precisely in accordance with the section, but it is at liberty, and in fact is bound, to enter upon the merits of the preliminary point upon which the case has been disposed of by the first Court: and I think that those decisions are perfectly right. But I think that they apply only to cases in which the points in question are really preliminary points. Where the Court of First Instance has disposed of a suit upon what really is a preliminary point, and the Lower Appellate Court has reversed its decision on that point, no doubt the High Court should and must decide between the two, which came to a right decision upon such point: but where, as in the present case, the points upon which the first Court disposed of the suit, and which points were also discussed by the Lower Appellate Court, are not in any sense preliminary points, but are points directed to the merits of the cases, I think that the High Court, upon appeal from the remand order, ought not to enter upon the merits of those points. It is quite enough to point out to the Lower Appellate Court that it has committed an error in applying Section 562, when that section does not apply, and that is the course I propose to observe in the present instance.

7. In these cases the points tried by the Munsif (who evidently did not consider them preliminary points) touched the merits of the cases. The lower Appellate Court could not, therefore, legally remand these cases under Section 562, because Section 564 prohibits an Appellate Court from doing so, except under the circumstance prescribed by Section 562. What the Court ought to have done if it thought any further enquiry or further evidence necessary to enable it to come to a decision, was to have complied with Section 566, keeping the bases on its own file.

8. This being my opinion, I set aside the order of remand under Section 562, and send these cases back to the lower Appellate Court. That Court must hear the appeals in the manner provided by law, and some to a final determination upon them. Of course, should it think it necessary, it may remit the case to the first Court for trial of any issue; but the decision now rests with the lower Appellate Court, and not with the Munsif.

9. Costs will abide the result.

Banerjee, J.

10. I concur in the order made by my learned brother.

11. The questions raised in these cases, which are of some importance, are, first, whether a party appealing under Clause 28 of Section 588, against an order of remand under Section 562 of the Code, is to be limited to grounds touching the correctness of the order appealed against merely in point of form, or is entitled to go into the merits of the case in so far as they bear upon the correctness or incorrectness of that order; and, secondly, if he is so entitled, whether he can ask this Court to examine the grounds upon which that order is based with reference as well to matters of fact as to points of law.

12. As to the first question, there does not appear to be much room for doubt. If a party is entitled to appeal against an order of remand, he is certainly entitled to ask the Court, not merely to consider whether that order is correct in point of form, but also to decide whether it is substantially and on the merits a correct order; and I think the view taken of the matter in the two cases referred to in argument, the case of Loki Mahto v. Aghoree Ajail Lall I.L.R. 5 Cal. 144 and the case of Badam v. Imrat I.L.R. 3 All. 675, is quite correct.

13. The second question does not, however, seem quite free from difficulty; and if it had been uecessary to decide the point in this case, I should have felt considerable hesitation in accepting the appellant's view as correct, namely, that upon an appeal from a remand order the appellant is entitled to go into questions of fact, when, if the very same matter had come up before this Court by way of appeal from appellate decree, his contention must have been limited to points of law. This is an anomaly which the Legislature is not likely to have intended. Under the Procedure Code of 1859, second appeals, whether from decrees or orders, were limited to questions of law; and under the present Code, Section 585 is, I think though not without some hesitation, sufficiently wide to limit the consideration of all second appeals to matters of law, whether they are appeals from appellate decrees or are appeals from orders in which the matter discussed is really raised by way of second appeal.

14. In the present case, however, it is not necessary to come to any definite decision upon this point, as the lower Appellate Court's decision on the so-called preliminary issues, upon which the order of remand appealed against is based, does not properly come before us for consideration now; that order clearly, and on the face of it, being bad in law as an order under Section 562. The points which have been regarded as preliminary points, not being preliminary points in any sense of the expression, no remand order under Section 562 ought to have been made. That being so, we cannot be called upon at the present stage to determine whether the lower Appellate Court's decision on the so-called preliminary points is right; and the learned Vakil for the appellants very properly concedes that he is not entitled to ask us in these cases to restore the judgment of the Munsif. What he asks for is, that the decision of the lower Appellate Court upon certain of the issues, which it has regarded as preliminary issues, should not have any binding force, so far even as that Court was concerned. If the points disposed of by the lower Appellate Court in its decision under appeal are not, as we think they are really not, preliminary points, any decision arrived at upon those points cannot have the effect that a decision properly arrived at under Section 562 can have; and this is all that I think it is necessary for us to say at present.


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