1. Think the reference may conveniently be considered in two parts.
2. First---whether the powers of the Appellate Court with regard to a remand under Section 107 of the Code of Civil Procedure of 1908 is restricted to the case specified in Order XLI, Rule 23, and 2nd---whether it is competent to the Appellate Court to remand a case in which in the opinion of the Court there has been no proper trial.
3. As regards the first part:
4. In order to ascertain the intention of the Legislature on this point, I think it is useful to examine the state of the law at the time the 1908 Code was passed.
5. Under the Civil Procedure Code of 1882 the Section which corresponded in effect to Order XLI, Rule 23, was 562. That section, however, was followed by 564 which provided that The Appellate Court shall not remand a case for a second decision except as provided in Section 562.'
6. Section 566 of the 1882 Code corresponded to Order XLI, Rule 25, of the present Code.
7. It had been held that though the Code of Civil Procedure of 1882 bound all Courts as far as it went, it was not exhaustive and did not affect previously existing powers, and that in matters with which it did not deal, the Court would exercise inherent jurisdiction to do that justice between the parties which was warranted by the circumstances and which the necessities of the case required and that in spite of the express provision of Section 564 the Appellate Court was not precluded from remanding a suit in a case to which neither Section 562 nor Section 566 applied. See Habib Bakhsh v. Baldeo Prasad 23 A. 167 : A. W. N. (1901) 39 and Hukum Chand Boid v. Kamalanand Singh 33 C. 927 : 3 C.L. J. 67.
8. The law being as stated above with regard to the power of remand, the 1908 Civil Procedure Code was passed.
9. The scheme of this Code is different from that of 1882. A general power is given by Section 107, which is made by its terms subject to such conditions and limitations as may be prescribed' (which means prescribed by rules) and the provisions of sections 562 and 566 of the old Code are in effect reproduced in Order XLI, Rule 23 and Rule 25, and Section 5154 has not been re-enacted either in the Code itself or in the rules.
10. Further a new Section applicable to this matter, viz., Section 151, was introduced. This Section is as follows:---'Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.'
11. In my judgment it was not the intention of the Legislature in the Code of 1908 to limit the powers of remand to the case specified in Order XLI, Rule 23, but that it intended to and did recognise and preserve such powers as had been exercised theretofore.
12. I think it may fairly be argued that under Section 107 read by itself, and having regard to the words 'subject to such conditions and limitations as may be prescribed', the power of remand is limited to the case described in Order XLI, Rule 23: but that does not dispose of the matter, for that Section must be read together with Section 151, which not only recognises but expressly preserves the inherent powers of the Court to make such orders as may be necessary for the ends of justice.
13. The question whether it is necessary for the ends of justice to exercise such powers of remand must depend upon the circumstances of each particular case, and in exercising such jurisdiction the Court must no doubt be careful to see that its decision is based on general legal principles and subject to the Rule that if the Code does contain specific provisions which would meet the necessities of the case in question, such provisions should be followed and the inherent jurisdiction should not be invoked.
14. In my judgment, therefore, the powers of the Appellate Court as regards remand are not restricted to the case specified in Order XLI, Rule 23, but the Court, by reason of its inherent jurisdiction, recognised and preserved in the Code as above mentioned, may order a remand in cases other than the case specified in Order XLI, Rule 23, if it be necessary for the ends of justice.
15. As regards the second part of the reference I think on further consideration that it is couched in too general terms, and that an answer to such a general question might lead to difficulty and misapprehension and inasmuch as the answer to the first part of the reference is really sufficient to dispose of the matter, I do not think it is necessary to give a specific answer to the second part of the reference.
16. The reference raises two questions, firstly, whether the Court's power of remand under Section 107 is restricted to the case specified in Order XLI, Rule 23, of the Code, and secondly, (if the answer be in the negative) whether it is competent to the Appellate Court to remand a case in which, in the opinion of that Court, there has been no proper trial. These two matters should, I think, be kept distinct. As regards the first part of the reference, the power to remand is sought to be baaed both on Section 107 of the Code and on the inherent jurisdiction. In my opinion, Section 107 cannot be relied upon as giving further powers than those which are specifically mentioned in the rules. This question of the relation between the body of the Code and the rules has been discussed in Mani Mohan Mandal v. Ramtaran Mandal 33 Ind. Cas. 329 : 43 C. 148 by Sir Lawrence Jenkins, C. J., who took part in the framing of the new Code. I agree with what is there said and I need not repeat the whole of it. The body of the Code creates jurisdiction while the rules indicate the mode in which it is to be exercised. The body of the Code must, therefore, be read in conjunction with the rules either as existing at the date of publication of the Code, or as altered or added to subsequently. A contrary view might lead to difficulties, for (to take an example) it might be urged that Section 114 of the Code gave the Court power to entertain a review in oases not covered by Order XLVII, Rule 1. I think, therefore, that the power of remand under Section 107 is limited to the case described in Rule 23, Order XLI If this were not so, the rules would be unnecessary, for the general power of remand would cover not only Order XLI, Rule 23, but every other conceivable case. But Sir Lawrence Jenkins went on to say; And this is the general rule, except under special conditions which have no application in the circumstances of the off be.' What is it which authorises the Court to act in such cases? In my opinion, we must invoke in such a case the inherent powers of the Court which are both recognised and saved by Section 151 of the Code. I have dealt with this question, whether the Code is exhaustive or not and whether the Court has inherent jurisdiction to pass such orders as justice requires, in my judgment in Hukum, Chand Boid v. Kamalanand Singh 33 c. 927 : 3 C. L. J. 67 and I therefore, do not repeat what I have said there. Doubtless this exercise of inherent jurisdiction must be exercised with care, subject to the general legal principles and to the condition that the matter is not one with which the Legislature has so specifically dealt as to preclude the exercise of inherent power. But it is argued here that the Code has dealt with the subject of remand and has, therefore, indicated that it is not to be ordered except in the one specific instance mentioned in Order XLI, Rule 23. I am not prepared to hold this,---the more so that Section 554 of the previous Code has not been re-enacted. The mere fact that Section 107 deals with remand does not exclude the Court's inherent jurisdiction to make orders of remand in cases other than those covered by Order XLI, Rule 23. I am of opinion, therefore, that the powers of the Appellate Court as regards remand are not limited to the specific case mentioned in Order XLI, Rule 23, and that the Court, under its inherent jurisdiction to do what is right and necessary, may order a remand in cases other than those covered by that order if justice so requires it. Whether justice does require a Court to invoke its inherent jurisdiction, must be determined by that Court with reference to the particular facts of the case and the Rule of law that a Court cannot invoke an inherent jurisdiction where there is a provision in the Code, whether by way of remand or otherwise, which, if applied, will meet the justice of the case. The merits of the particular application out of which this reference arose are not before us.
17. The second part of the reference is in such wide terms that I feel a difficulty in answering it in a manner which will not lead to misapprehension. Thus the words a 'proper trial' might include cases within Order XLI, and an answer in the affirmative might enable the Courts to order wrongly a new trial, although the particular case ought to be dealt with under the provisions of Order XLI. It is the less necessary to do so as the Advocate-General has stated that he will be satisfied with a decision given on the first part of the reference.
18. The question referred for decision has been framed in the following terms: Whether the power of the Appellate Court with regard to a remand under Section 107 of the Code of Civil Procedure is restricted to the case specified in Order XLI, Rule 23, of the same Code, or, whether it is competent to the Appellate Court to remand a case in which, in the opinion of that Court, there has been no proper trial.'
19. I shall confine myself to an examination of the first branch alone of the question formulated; for, if it is answered in the negative, the second does not arise, while if it is answered in the affirmative, the second need not be considered, as it is not necessary for our present purpose to specify the limits of the power of remand, if such power is capable of exercise in cases other than those contemplated by Order XLI, Rule 23.
20. Section 107 recognises the power of an Appellate Court to remand a case, but such power is expressly made subject to such conditions and limitations as may be prescribed, that is, prescribed by rules and forms contained in the First Schedule or made under Section 122 or Section 125 [Section 2, Clauses 16 and 18]. This, in my opinion, does not necessarily imply that wherever there is a provision in the rules relating to the matters mentioned in the section, the provision is by way of condition or limitation; whether a particular Rule has or has not this effect must clearly depend on its terms. This is not inconsistent with the view indicated by Jenkins, C. J., in Mani Mohan Mandal v. Ramtaran Mandal 33 Ind. Cas. 329 : 43 C. 148 that the body of the Code creates jurisdiction while the rules indicate the mode in which it is to be exercised, which, it is important to observe, is essentially different from the view adopted by Stephen, J, in Na(sic)in Chandra Tripati Y, Pran Krishna Dey 20 Ind, Cas. 39, 41 C. 108 : 18 C. L. J. 613, that the sections lay down general principles while the rules provide the means by which they can be applied and they cannot be otherwise applied as the rules restrict the provisions contained in the sections. I do not read Order XLI, Rule 23, as a limitation on the power of remand recognised in Section 107, in the sense that the power to remand can be exercised only in the contingency mentioned in Order XLI, Rule 23. Apart from this, it seems to me to be incontestable that Section 151, which embodies a statutory recognition of the inherent power of a Court to make such orders as may be necessary for the ends of justice, gives ample authority to the Court to make an order of remand in cases not comprised within Order XLI, Rule 23, where the Court is satisfied that such order is necessary for the ends of justice. Section 151 does not recognise a new principle; it embodies a doctrine which had been enunciated by Sir Barnes Peacock in Hurro Chunder Roy Chowdhry v. Shoorodhonee Debia 9 W. R. 402 at p. 406 : B. L. R. Sup. Vol. 985 and was re stated and re affirmed by Woodroffe, J., and myself, in Panchanan Singha Roy v. Dwarka Nath Roy 3 C. L. J. 29 and Hukum Chand Boid v. Kamalanand Singh 33 c. 927 : 3 C. L. J. 67. I feel no doubt whatever that nothing in Section 107 restricts in any manner the application of the principle of inherent power recognised by Section 151. This was the view adopted by me, after careful consideration and in concurrence with Carnduff, J, in Tohra (Zohra) Bibi v. Zabeda Khatoon 7 Ind. Cas. 75 : 12 C. L. J. 368 and Gora Chand v. Basanta Kumar 12 Ind. Cas. 684 : 15 C. L. J. 258. I see no reason to depart from that view, which has been subsequently followed in Upendra Chandra v. Shaikh Sabhan 11 Ind. Cas. 183 : 15 C. L. J. 6 and Meah Uzir Ali Sardar v. Savai Behara 32 Ind. Cas. 791 : 43 C. 938 : 20 C. W. N. 547. The decision of Jenkins, C. J., and N. R. Chatterjea, J., in Mani Mohan Mandal v. Ramtaran Mandal 33 Ind. Cas. 329 : 43 C. 148 also recognises the power of a Court of Appeal to order a remand under special conditions not included in Order XLI, Rule 23. I respectfully dissent from the contrary view expressed by Stephen and Mullick, JJ., in Nabin Chandra Tripati v. Bran Krishna Dey 20 Ind. Cas. 39. 41 C. 108 : 18 C. L. J. 613. That the Code itself recognises the power of a Court to direct a remand in circumstances other than those specified in Order XLI, Rule 23, is clear from the terms of Section 99. I am fortified in my conclusion by an examination of the condition of the law as it stood under the Code of 1882. Section 564 explicitly provided that the Appellate Court shall not remand a case for a second decision except as provided in Section 562 : yet, the Courts had repeatedly claimed a power to direct a remand in circumstances not included in Section 562. The Court sometimes traced the source of this authority to its inherent power to make such orders as might be needed for the ends of justice, as in Perumbra Nayar v. Subrahmanian Pattar 23 M. 445 : 10 M. L. J. 61 : 8 Ind. Dec. (n. S.) 712 but on mother occasions the Court, apprehensive as it were to invoke its inherent power, treated the authority as involved by implication in one or other of the provisions of the Code, for instance, in Habib Bakhsh v. Baldeo Prasad 23 A. 167 : A. W. N. (1901) 39. See also Jadab Gobinda Singh v. Anath Bandhu Saha 5 Ind. Cas. 998 : 37 C. 171. While the law was in this condition, the Legislature took two significant steps, namely, first, they refrained to reproduce in the Code of 1908 the restrictive provision contained in Section 564, and, secondly, they introduced in the Code of 1918 Section 151, which recognises in explicit terms the Inherent power of a Court to make such orders as may be necessary for the ends of justice. The only inference legitimately deducible from this history of the legislation on the subject is that the Legislature intended to place beyond all doubt and dispute the authority of an Appellate Court to direct a remand and retrial in cases other than those comprised in Order XLI, Rule 2J, where the Court is satisfied that such order is necessary in the ends of justice. There is, on the other hand, the significant fact that Sections 584 and 585 of the Code of 1882, which enumerated the grounds for a second appeal and prescribed a restriction that a second appeal did not lie on any other ground, re-appear as Sections 100 and 101 of the Code of 1908. The view that a Court of Appeal is competent to direct a remand and re-trial in a case not covered by Order XLI, Rule 23, if the Court is satisfied that such an order is necessary in the ends of justice, has been adopted in other High Courts under the Code of 1908: Narottam Bajaram v. Mohanlal Kahandas 17 Ind. Cas. 891 : 37 B. 289 : 14 Bom L. R. 1154; Kuppelan v. Kunjuvalli 9 Ind. Cas. 790 : 9 M. L. T. 378 : (1911) 1 M. W. N. 199; Vemula Jambalaya v. Iskala Rajamma 15 Ind. Cas. 859 : 36 M. 492 : (1912) M. W. N. 1000 : 24 M. L. J. 512. It is undeniable that exceptional cases, not capable of exhaustive enumeration or classification, do sometimes occur in which defects of trial are so radical as to be incurable otherwise than by a re-trial de novo. In a case of this decription, it is incumbent on the Court of Appeal to exercise its inherent power to make such orders as, in its opinion, are required in the ends of justice. The exercise of such inherent powers can only be invoked where the Court is satisfied that the specific provisions of the Code are not sufficient to meet the necessities of the case. The Court of Appeal is invested with plenary powers to correct errors of procedure committed by the Trial Court, as is clear from an examination of rules 24---29 contained in Order XLI of the Code. These provisions cannot be arbitrarily disregarded on well-established principles, which regulate the exercise of inherent power by a Court of Justice, as explained in the judgments in Hukum Chand Boid v. Kamalanand Singh 33 c. 927 : 3 C. L. J. 67 and Panchanan Singha Roy v. Dwarka Nath Roy 3 C. L. J. 29 : but where the Court of Appeal is satisfied that the correction of the omissions or defects in the trial is not reasonably practicable by recourse to one or other of the provisions mentioned, that is, where it is clearly apparent that the Appellate Court cannot itself satisfactorily dispose of the suit on the merits by the adoption of the specific procedure mentioned in rules 24---29, a remand for re-trial is not only permissible but obviously incumbent on the Court. This view has been followed in practice in this Court for a long series of years, and this is obviously a case for the application of the maxim cursus curice est leae curiae. In my opinion the reference should be answered in the terms mentioned in the judgment of the learned Chief Justice.
21. The following question has been referred for decision by the Full Bench:--- Whether the power of the Appellate Court with regard to a remand under Section 107 of the Code of Civil Procedure is restricted to the case specified in Order XLI, Rule 23, of the same Code, or whether it is competent to the Appellate Court to remand a case in which in the opinion of that Court there has beep no proper trial,' These are really two separate questions, to which it would be inconvenient if not impossible to give a single answer.
22. Dealing with the first part of the question I confess that I was at first sight inclined to think that Order XLI, Rule 23, while prescribing a condition to a remand under Section 107 (1) 33 Ind. Cas. 329 : 43 C. 148, did not impose any limitation on the power of an Appellate Court under that section. There are no words of limitation to be found in Rule 23. As was said by the Court in Tohra (Zohra) Bibi v. Zabeda Khatoon 7 Ind. Cas. 75 : 12 C. L. J. 368. 'Rule 23 makes provision for a particular contingency, but clearly its scope is neither exclusive nor all-embracing.' Section 99, also, which precedes Section 107 and which forbids a remand under certain circumstances, seemed to me to imply that there may be cases of remand not covered by Order XLI, Rule 23. On the other hand, however, it may be reasonably urged that if Order XLL, Rule 23, merely prescribes one contingency, in which a remand may be made, and leaves the general provisions of Section 107 otherwise unfettered in this respect, then Rule 23 is wholly unnecessary and superfluous, and the same might also be said of the other rules which regulate fie powers of an Appellate Court conferred by Section 107, viz, Rules 25 to 29 inclusive. It is obvious that this cannot have been the intention of the Legislature, which framed the present Code and rules together. It may be noted that by Order XLIII, Rule I (u) the right of appeal is given only against an order under Order XLI, Rule 23, remanding a case. This indicates that the only order of remand under Section 107 (1) (b), contemplated by the Code and rules as framed, is one made under Order XLI, Rule 23. I had the advantage of reading the judgment of Woodroffe, J, and I agree with what he has said in this connection. This was also the view expressed by the late Chief Justice Sir Lawrence Jenkins in the case of Mani Mohan Mandal v. Ramtaran Mandal 33 Ind. Cas. 329 : 43 C. 148 and his opinion is entitled to all the more weight as he was in a great measure responsible for the Code of Civil Procedure and the rules as they now stand.
23. It follows that the first part of the question must be answered in the affirmative, but the matter does not end there. I entirely agree that while the power of remand given to an Appellate Court by Section 107 (1) (b) is restricted by Order XLI, Rule 23, the inherent power of the Court, which is expressly reserved to it by Section 15, may be invoked to enable it to make an order of remand in circumstances which are not provided for by the Code or the rules, This power must be exercised with the greatest caution. It must not be exercised to enable the Court to pass an order contrary to the provisions of the Code or the rules. Nor can it properly be exercised in circumstances where the Code or rules provide an adequate remedy, as for example in the case of Mani Mohan Mandal v. Ramtaran Mandal 33 Ind. Cas. 329 : 43 C. 148 above cited, which was a case of adducing additional evidence. A good example of a case to meet which there is no provision in the Code or rules is Tohra (Zohra.) Bibi v. Zabeda Khatoon 7 Ind. Cas. 75 : 12 C. L. J. 368 also above cited, which is the earliest of the cases now under review. Sir Lawrence Jenkins no doubt had this in mind when he said: These rules provide that in the case of a lower Appellate Court the power of reversal and remand is limited to the position described in Rule 23, Order XLI. And this, is the general Rule except under special conditions which have no application in the circumstances of this case.' In this view of the matter the prohibition on remands contained in Section 99 also becomes intelligible.
24. I do not think that the second part of the question can be properly answered by this Full Bench. The expression case in which in the opinion of the Appellate Court there has been no proper trial' opens up questions of fact, into which this Bench cannot go. It is, however, unnecessary to discuss the matter further, as the learned Advocate-General stated that he would be content with an answer to the first question.
25. This reference arises out of an application for review of the judgment delivered in Appeal No. 27 of 1916, and the question referred to the Full Bench has been stated in the following terms: namely, whether the power of the Appellate Court with regard to a remand under Section 107 of the Code of Civil Procedure is restricted to the case specified in Order XLI, Rule 23, of the same Code or whether it is competent to the Appellate Court to remand a case in which, in the opinion of that Court, there has been no proper trial.
26. Section 107, Sub-section (1), of the Code provides that subject to such limitations and conditions as may be prescribed an Appellate Court shall have power
(a) to determine a case finally,
(6) to remand a case,
(c) to frame issues and refer them for trial,
(d) to take additional evidence or to require such evidence to be taken.
27. For the purposes of this reference Sub-section (2) may be disregarded.
28. The limitations and conditions prescribed are to be found in the rules contained in the First Schedule to the Code, that is, in the rules contained in Order XLI.
29. It is now well settled that as regards matters specifically dealt with by the Code, the provisions of the Code are exhaustive. It would seem to follow that when an Appellate Court finds itself unable to arrive at a final determination, it should deal with the case under one or other of the Sub-clauses (b), (c) and (d) in accordance with the circumstances set out in the appropriate rule. A case should, therefore, be remanded, in other words, a de novo trial should be directed, only where Order XLI, Rule 23, is applicable, that is to-say, where the Trial Court has disposed of the suit upon a preliminary point,'
30. In the course of the argument before us some stress was laid upon the omission from the present Code of the express prohibition of a de novo trial in other capes which was to be found in Section 564 of the Code of 1882. To this omission I am unable to attach any great importance, as in the view I take the provisions of Section 564 of the last Code have been in effect incorporated in the wider language used in the opening clause of Section 107 (1), that is to say, in the words 'subject to such limitations and conditions as may be prescribed,'.