1. In the suit out of which this appeal has arisen the plaintiff sued the defendant for recovery of arrears of rent with the usual cesses and damages. His case was that he was a part-proprietor of a certain deara mehal bearing Touzi No. 6504 of the Faridpur Collectorate, his share being one anna three three-fourths gundas odd and that the defendants had taken an ejara lease of the whole mehal from the plaintiff's predecessor in interest and his cosharers at a certain jama.
2. The plaintiff's case was that he collected his share of the rent separately and as the defendants had failed to pay his rent for the years 1326 to 1329 B.S. he brought the suit.
3. The case of Defendant No. 1 who contested the suit was that the relationship of landlord and tenant did not exist between him and the plaintiff, that the mehal had been temporarily settled with him (Defendant No. 1) by the Secretary of State for India in Council for 15 years and also that the suit was bad for misjoinder and non-joinder of parties.
4. The first Court found that the relationship of landlord and tenant did not exist between the plaintiff and the defendants. He also found that the suit was bad for misjoinder of parties and that plaintiff was entitled to no relief. On appeal the learned Subordinate Judge held that the issues for determination were whether there was relationship of landlord and tenant between the parties, whether the plaintiff's collection was separate and whether the plaintiff was entitled to recover any sum from the defendant and if so how much. He proceeded to find that the suit was not properly a rent suit. It was really a suit for malikana. On this finding he passed the following order:
The plaintiff shall get a decree for the amounts payable to him in his share with, costs and such damages as the lower Court thinks proper to allow. The appeal is Accordingly allowed with costs, and the suit is remanded to the lower Court for determining the aforesaid questions of malikana payable to the plaintiff's share and for deciding the suit after such determination in accordance with the findings and directions given above.5. Now this direction of the learned Judge remanding the whole suit is clearly bad in law. If the learned Judge was of opinion that the trial Court has failed to decide any issue or had failed to draw up any necessary issue the proper course to follow was himself to frame the issue and to send it down, if necessary, to the trial Court for taking evidence and to return the evidence together with his finding to the lower appellate Court. This is the procedure which is provided for in Order 41, Rule 25, Civil P.C. The order of the learned Subordinate Judge remanding the whole case is clearly bad and must be set aside and the appeal must be sent back to him to be decided in accordance with law.
6. If, as I have already pointed out, he is of opinion that any issue requires to be determined which has not been determined he should proceed as provided in Order 41, Rule 25, Civil P.C. Costs of this appeal will abide the final result.
7. I agree.