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Hira Lal Pal Vs. Etbar Mandal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in32Ind.Cas.866
AppellantHira Lal Pal
RespondentEtbar Mandal and ors.
Cases ReferredLachman Prasad v. Jamna Prasad
Excerpt:
civil procedure code (act v of 1908), order xli, rules 23 and 25 - remand--remanding court, whether can re-consider decisions on issues decided on occasion of remand--preliminary decree, when decisions on certain issues--test--interlocutory orders, effect of. - .....it may be mentioned that those issues are quite independent of issues, nos. 3 and 4. the suit is a suit for ejectment. the parties are rival tenants. the true title is found in the plaintiff. the defence to which issues nos. 1 and 2 were directed was whether the plaintiff had been dispossessed by the landlord, whether he ought to have been made a party and whether the limitation specially provided by the bengal tenancy act for suits between landlord and tenant applied? these questions have been answered in the negative and upon the whole of the findings including those of his predecessor, the subordinate judge made a final decree in the plaintiff's favour. the contention is that the decree is wrong because the subordinate judge refused to treat the issues decided by his.....
Judgment:

Richardson, J.

1. On consideration we are of opinion that there is no sufficient reason for our interference. The point which was taken at the hearing was that the learned Subordinate Judge in the Court of Appeal below was wrong in treating the decision of his predecessor upon issues Nos. 3 and 4 in the suit as final so far as he was concerned and in refusing to re-consider those issues upon the evidence for the purpose of arriving at an independent determination in regard to them. Issues Nos. 3 and 4 relate to the merits of the dispute between the parties and what happened was this. The first Court originally decided those issues against the plaintiff and dismissed the suit without deciding the remaining issues Nos. 1 and 2, which raised separate questions of limitation and misjoinder. Upon appeal the then Subordinate Judge in a judgment, dated the 31st May 1910, found in the plaintiff's favour upon issues Nos. 3 and 4 and remanded the suit to the first Court with the direction that the Munsif was to 'dispose of the suit after the trial of the first and second issues and according to the findings of this Court, on the third and fourth issues.' There was an appeal to the High Court from the order of remand and the High Court in its judgment of the 4th June 1912, held that the order was wrong inasmuch as it was passed apparently under Rule 23 of Order XLI whereas the case should have been dealt with under Rule 25 of the same Order. In pursuance to directions given by this Court, the suit was then remitted to the first Court in order that the Munsif might try issues Nos. 1 and 2 and certify his findings thereon to the lower Appellate Court, upon whose file the appeal remained as a pending appeal. When the record again came up to that Court, the Subordinate Judge who had previously dealt with the appeal had left. His successor expressly refused to review the decision already arrived at on issues Nos. 3 and 4 and confined himself to a consideration of the first two issues in regard to which he accepted the findings of the Munsif which were in favour of the plaintiff. It may be mentioned that those issues are quite independent of issues, Nos. 3 and 4. The suit is a suit for ejectment. The parties are rival tenants. The true title is found in the plaintiff. The defence to which issues Nos. 1 and 2 were directed was whether the plaintiff had been dispossessed by the landlord, whether he ought to have been made a party and whether the limitation specially provided by the Bengal Tenancy Act for suits between landlord and tenant applied? These questions have been answered in the negative and upon the whole of the findings including those of his predecessor, the Subordinate Judge made a final decree in the plaintiff's favour. The contention is that the decree is wrong because the Subordinate Judge refused to treat the issues decided by his predecessor as open to further discussion and the contention is pushed to this point that if the appeal had come the second time before the Subordinate Judge who first dealt with it, he too would not have been bound by his previous judgment.

2. Now, I observe that the first Subordinate Judge evidently intended to dispose off finally issues Nos. 3 and 4. This is clear from the terms of the order of remand. It is equally clear that the High Court in its judgment of the 4th June 1912 did not contemplate a re-hearing of these issues. Having pointed out that the Subordinate Judge ought 'only to have sent the case back under Rule 25 of Order XLI in order that the Munsif might come to findings on issues Nos. 1 and 2,' the learned Judges added: 'it would have been open to the parties then to argue on those two issues (namely, issues Nos. 1 and 2) and the lower Appellate Court should have then proceeded to deal with the case.' There is no suggestion that issues Nos. 3 and 4 should be re-argued or re-heard. The High Court did not set aside the Subordinate Judge's judgment of the 31st May 1910, but merely altered the form of the remand. Prima facie it would seem sufficient to say that in the subsequent proceedings the High Court's orders were properly understood and carried out. It was argued, however, that, nothing being expressly said about issues Nos. 3 and 4, the orders operated under the Civil Procedure Code to re-open them, and in support of this argument some reported cases were cited which must be briefly noticed.

3. The case of Boncharee Ghose v. Ainooddeen Biswas 24 W.R. 137 is of no assistance to the appellant. The case had been wrongly remanded by a Subordinate Judge and the High Court gave specific directions as to how it was to be dealt with, including a direction that when the case came again before the Subordinate Judge, with the findings of the Munsif upon the issues sent down to him for trial, the Subordinate Judge was to hear the appeal de novo. In the present case the High Court might, no doubt, have made a similar direction but did not do so.

4. In the cases of Mubarak Husain v. Bihari 16 A 306; A.W.N. (1894) 97 and Hiatunnessa Bibi v. Kailash Chandra Saha 17 Ind. Cas. 224; 16 C.L.J. 259 it does not appear from the reports that there was any adjudication by the remanding Judge which would bind him or his successor at the final hearing. There is no doubt that an issue can be sent down in such a way that the whole appeal remains open. In such a case the appeal will be finally, decided on the record as a whole and it may be possible to disregard the issue sent down and the finding upon it as otiose.

5. I doubt whether the case of Ganendra Nath Roy Chowdhury v. Surja Kanta Roy Chowdhury 15 Ind. Cas. 39; 17 C.W.N. 462 goes any farther. It seems obvious that in remanding a case an opinion may be incidentally or provisionally expressed which would not amount to a final adjudication so as to conclude the parties.

6. On the other hand, in Balvant Ramchandra Natu v. Secretary of State 32 B. 432: 10 Bom. L.R. 531 it was recognised that a remanding judgment may be 'conclusive on all points therein specifically decided beyond possibility of revision.' In Brojo Soondur Gossamee v. Juggut Chunder Dey 21 W.R. 199 it was held that a District Judge has no authority, when hearing an appeal from a Munsif's decision, to vary or ignore the directions made by an Appellate Court of co-ordinate jurisdiction, such as that of the Subordinate Judge. The learned Judges observed: 'The District Judge in such cases ought to be guided by the practice which obtains in this Court, where, when one Division Bench sees fit to give certain directions, any other Bench before which the case may afterwards come on, has to keep itself within those directions.' This case was cited with approval in Jammalamadaku Subbalakshmamma v. Jammala Venkatatayadu 2 Ind Cas. 525; 32 M. 318 at p. 320; 5 M.L.T. 75. The cases of Suraj Din v. Chatter 3 A. 755; A W.N. (1881) 55 and Kharag Prasad Bhagat v. Durdhari Rai 14 A. 348; A.W.N. (1892) 25 may also be referred to. Moreover there is a catena of authorities which show that interlocutory orders may be, and often are, decretal and final in their character and therefore (subject, of course, to review by a superior Court in appropriate proceedings taken before it) binding as between the parties in subsequent stages of the same litigation [Mungul Pershad Dichit v. Grija Kant Lahiri 8 1. A. 123; 11 C.L.R. 113; 8 C. 51; 4 Sar. P.C.J. 240, Ram Kirpal v. Rup Kuari 11 1. A. 37; 6 A. 269; 4 Saraswati's P.C.J. 489, Muhammad Abdul Majid v. Muhammad Abdul Aziz 24 I.A. 22 at p. 32; 19 A. 155; 7 Sar. P.C.J. 111, Raja Bhup Indar Bahadur Singh v. Bijai Bahadur Singh 27 I.A. 209; 5 C.W.N. 52; 23 A. 152 and Ahmed Musaji Saleji v. Hashim Ebrahim Saleji 28 Ind. Cas. 710; 17 M.L.T. 312; 2 L.W. 377; 21 C.L.J. 419; 13 A.L.J. 540; 17 Bom. L.R. 432; 29 M.L.J. 70; (1915) M.W.N. 485; 42 C. 914; 42 I.A. 91; 19 C.W.N. 449].

7. The observations in the case of Lachman Prasad v. Jamna Prasad 10 A. 162; A.W.N. (1887) 295 as to the possible difficulty of drawing up a final decree on the basis of separate judgments delivered at different dates had reference to the Civil Procedure Code of 1882. The difficulty disappears under the Code of 1908, which in Section 2 defines the term preliminary decree' and by Section 97 provides that if no appeal is preferred from a preliminary decree, its correctness cannot be afterwards disputed in an appeal from the final decree. One test, therefore, which may be suggested for the purpose of determining whether an adjudication, such as that of the 31st May 1910, is or is not final and conclusive so far as it goes, is whether it does or does not amount to a preliminary decree.' In the case before us the order of that date was assumed in argument to be merely interlocutory in its nature or rather to be nothing more than an order of remand. It was appealed from as an order of remand and, therefore, treated as such in the judgment of this Court of the 4th June 1912. On that footing it would, in our opinion, as we have already intimated, be sufficient to say that the lower Appellate Court has correctly carried out the directions of this Court according to their true interpretation. But if it be necessary to go further, I should be disposed to hold that the order was a formal expression of an adjudication which amounted to a preliminary decree and that no appeal having been preferred from that decree as such, the appellant is now bound by it.

8. In the result this appeal must be dismissed with costs.

Mullick, J.

9. I agree that the appeal must be dismissed on the ground that having regard to the manner in which the remand order of the High Court was expressed, it was not open to the Subordinate Judge to revise the decision of his predecessor (the remanding Subordinate Judge) on issues nos. 3 and 4. But even if there had been no appeal to the High Court, the Subordinate Judge was, in my opinion, not bound to re-hear the parties on these issues; for it seems to be well settled that though it is open to a Court to revise after remand interlocutory decisions which were made either by itself or by an officer of coordinate jurisdiction, yet as a matter of practice a Court will not and ought not to do so. When, however, the interlocutory decision amounts to a preliminary decree within the meaning of Section 2 of the Civil Procedure Code the Court is, of course, incompetent to revise that decree till it is duly set aside or amended according to law. In the present case I would hesitate to say that the findings on issues Nos. 3 and 4 amounted to preliminary decrees. Issue No. 4 does not decide any question of right. Issue No. 3 does decide the question of title to the land in suit, but as that decision is subject to the decision of issues Nos. 1 and 2 which relate to limitation and non-joinder of parties, it seems doubtful whether the remanding Subordinate Judge did conclusively determine the rights of the parties. But it is not necessary to go into this question any further because for the reason already given the appeal must be dismissed with costs.


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