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Radha Kanta Das Nanak and ors. Vs. Prakash Chandra Dutt and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in64Ind.Cas.599
AppellantRadha Kanta Das Nanak and ors.
RespondentPrakash Chandra Dutt and anr.
Cases ReferredAbdul Karim Abu Ahmed Khan v. Allahabad Bank
Excerpt:
civil procedure code (act v of 1908), order xli, rule 26 - appellate court--re-trial, when to be ordered. - .....in these circumstances, the order of remand made in substance must stand. but, in so far as the learned additional district judge has set aside the decree if the first court and remanded the suit for a fresh tiral, the order should be varied to bring it into conformity with the provisions of order xli, rule 25, civil procedure code, for though, as was decided in abdul karim abu ahmed khan v. allahabad bank, limited 41 ind. cas. 598 : 44 c. 929 : 28 c.l.j. 49 : 21 c.w.n. 877, the appellate court has the power to order are-trial, that course should not be adopted except in exceptional circumstances and whets the code does not provide an adequate procedure. the order, therefore, will be that the issues framed by the learned additional district judge will be remitted for trial to the.....
Judgment:

Buckland, J.

1. I do not think that 1 should interfere with the order of remand, because whether or not there is jurisdiction on this application to interfere with an order of this nature, it is not possible to do so without considering the evidence which is not before me. It was before the learned Additional District Judge who made the order and could, therefore, appreciate how the trial proceeded. The difficulty in this case has arisen owing to the practice, to which I have referred more than once, of framing comprehensive issues instead of framing separate issues which state specifically the questions of fact and law that arise in the case. The issue in this case which is open to this criticism is the fifth:--'Have the plaintiffs their alleged right and title to the disputed property?' This issue admits of almost any contention to establish their claim which the plaintiffs may put forward and equally it admits of almost any defense which the defendants may prefer. In these circumstances, the order of remand made in substance must stand. But, in so far as the learned Additional District Judge has set aside the decree if the First Court and remanded the suit for a fresh tiral, the order should be varied to bring it into conformity with the provisions of Order XLI, Rule 25, Civil Procedure Code, for though, as was decided in Abdul Karim Abu Ahmed Khan v. Allahabad Bank, Limited 41 Ind. Cas. 598 : 44 C. 929 : 28 C.L.J. 49 : 21 C.W.N. 877, the Appellate Court has the power to order are-trial, that course should not be adopted except in exceptional circumstances and whets the Code does not provide an adequate procedure. The order, therefore, will be that the issues framed by the learned Additional District Judge will be remitted for trial to the Court of the First Munsif of Midnapore, which will take such additional evidence as the parties may be advised to adduce. The Court of the First Munsif of Midnapore will proceed to try such issues and then return the evidence to the lower Appellate Court together with its findings on these issues and the reasons therefor. The lower Appellate Court will, thereupon, as provided by Order XLI, Rule 26,Civil Procedure Code, proceed to determine the appeal, subject to any memo, of objection which may be tiled by either party under the provisions of Sub-section (1) of that rule. the petitioners must pay the costs of the opposite party in this Rule. I assess the hearing-fee at one gold mohur.


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