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Susthir Bala Dutta Vs. Chandra Kumar Alias Akhoy Kumar Bhattacharjee and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in36Ind.Cas.813
AppellantSusthir Bala Dutta
RespondentChandra Kumar Alias Akhoy Kumar Bhattacharjee and ors.
Cases Referred and Meah Uzir Ali Sardar v. Savai Behara
Excerpt:
civil procedure code (act v of 1908), section 107, order xli, rule 28 - civil procedure code (act xiv of 1882), section 562--remand--appeal, court of, powers of. - 1. these appeals arise out of two suits one of which was for specific performance of a contract and the other for recovery of possession of the property in suit. the court of first instance dismissed the first suit and decreed the other. on appeal the learned subordinate judge remanded the cases for a trial de noro.2. it appears that the court of first instance disallowed some evidence to prove the agreement upon which the suit for specific performance was based on the ground that the said agreement was inadmissible in evidence for want of registration. that view is manifestly erroneous as the agreement did not require registration and as some evidence had been excluded the court of appeal below was justified in remanding the case. it is contended however, before us that an appellate.....
Judgment:

1. These appeals arise out of two suits one of which was for specific performance of a contract and the other for recovery of possession of the property in suit. The Court of first instance dismissed the first suit and decreed the other. On appeal the learned Subordinate Judge remanded the cases for a trial de noro.

2. It appears that the Court of first instance disallowed some evidence to prove the agreement upon which the suit for specific performance was based on the ground that the said agreement was inadmissible in evidence for want of registration. That view is manifestly erroneous as the agreement did not require registration and as some evidence had been excluded the Court of Appeal below was justified in remanding the case. It is contended however, before us that an Appellate Court has not the power to remand a case for a retrial when the Court of first instance has not decided the suit upon a preliminary point. But under the Code of 1908, the powers of a Court of Appeal are much wider in respect of remand than the powers of a Court of Appeal under the Code of 1882. See Gora Ghand Haldar v. Basanta Kumar Haldar 12 Ind. Cas. 684 : 15 C.L.J. 258; Tohra Bibi v. Zabeda Khatoon 7 Ind. Cas. 75 : 12 C.L.J. 368 and Meah Uzir Ali Sardar v. Savai Behara 32 Ind. Cas. 791 : 43 C. 938 : 20 C.W.N. 547. In this case it appears that important questions were disallowed during the examination of the witnesses, and as such, there was no proper trial of the case in the Court of first instance. We think, therefore, that the Court of Appeal below was right in remanding the case.

3. It is not however necessary to hold a trial of the cases de rovo. The parties here agree that the evidence already adduced in the cases will be treated as evidence and that the plaintiff in the suit for specific performance of contract will be allowed to adduce evidence to prove the agreement and with regard to the notice alleged to have been given to the other side as also to put questions to the witnesses for the other side with regard to the said agreement and the notice. The lower Court's order that an issue as to defendant No.4's title to all the properties in the suit if necessary may be framed will stand and the parties will be allowed to adduce evidence on such issue if any such issue is framed. The Court will then decide the case upon the evidence already on the record and the evidence which will be adduced.

4. The suit for the recovery of possession will be decided after the decision of the suit for the specific performance of the contract.

5. The appellant must pay to the respondents their costs of these appeals. We assess the hearing fee at one gold mohur in each case. Further costs will abide the result.


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