1. This was filed as an appeal under Order 43, Rule 1 (u), C. P. Code, against the order of, the learned District Judge, Mandi, remanding the case for retrial by the Subordinate Judge of Mandi. From a perusal of the judgment of the lower appellate Court, however, it is clear that the remand was not made under Order 41, Rule 23. On the other hand, the learned District Judge has made it clear that the remand was under Section 151, Civil P. C. Plainly, therefore, the appeal does not lie. Learned counsel for the appellant, while conceding that the appeal is not maintainable, prayed that, in the alternative, it may be treated as a revision. His argument was that the remand was unnecessary and the learned District Judge has not exercised his jurisdiction properly. Heelaborated this argument by pointing out that there was no issue regarding limitation and the grounds of appeal, taken before the lower appellate Court, were silent regarding limitation. Learned counsel argued that it was open to the learned District Judge to remit an issue to the trial Court under Order 41, Rule 25. He contended that, as a result of the remand order, the respondents would be in a positin to fill gaps in theirevidence.
2. A perusal of the judgment of the learnedDistrict Judge, however, shows that in his opinion,the point of limitation was an important one andhe was at a loss to understand why no issue hadbeen framed on that point. He further foundthat the judgment of the Subordinate Judge wasa sketchy one and no finding was given on issueNo. 3. The following passages from the judgmentof the District Judge are significant:
'I have heard counsel for the parties and gonethrough the record. It is difficult for a Court ofAppeal to feel satisfied with the way in whichthis case has been dealt with by the learned Subordinate Judge. The plaintiffs had claimed the right of pre-emption firstly on the ground of being collateral heirs of the vendor, and the ground of proprietorship in the estate was set up in the second place. The learned Subordinate Judge has totally left out of consideration the main ground. He has also not properly weighed the implications of fixing the burden of proof. It was the duty of the plaintiffs, not only to prove that they possessed the qualifications alleged in the plaint entitling them to get the land, but also establish that the defendant-appellant did not possess those qualifications. The plaintiffs had produced no evidence on the latter fact and the Subordinate Judge has relied on an admission of the appellant in a statement as his witness that he is not a proprietor in village Lot. The defendant-appellant later tried to show that this admission was wrong and to do so he wanted to produce the evidence of the revenue records. The Subordinate Judge rejected this documentary evidence, because it was being put forward at a late stage of the case. That was hardly a ground on which evidence of the type could be shut out altogether. It was not impossible to adjourn the case to let the defendant make an effort to put in the evidence. The other side could very well be compensated by grant of costs. The learned Subordinate Judge has taken rather a harsh view of the matter and in my opinion he has exercised his discretion in the matter quite unjudiciously.'
'Admittedly the alleged sale price of Rs. 350/-was not paid before the Sub-Registrar. No evidence was led with regard to its payment, but the learned Subordinate Judge has held that the amount was paid or fixed in good faith because the vendor admitted before the Sub-Registrar that he had received the amount. Such an admission was hardly of any value in a suit for pre-emption. It was necessary for the appellant to prove this fact by cogent evidence and as such evidence was not produced before him the learned Sub-Judge could not find the issue in his favour. It was, therefore, obvious that a finding on issue No. 3 should have been given after due inquiry.'
'It is also contended for the appellant that the plea of res judicata has not been properly appreciated by the learned Sub-Judge. Preemption is a right which a person can exercise individually and if one of the plaintiffs had claimed this right in a previous suit and had failed, the same claim when put in issue again in this case between him and the plaintiffs could come under the rule of res judicata. This was a point which required more detailed consideration and could not be disposed of in a few lines as the learned Sub-Judge has done.'
3. It is obvious from the above that in the opinion of the learned District Judge the matter could not have been set right by remitting an issue under Order 41, Rule 25. If issues had to be so remitted, issues covering the entire ground would have to be remitted, which means, in other words, that the suit would have to be tried de novo. It is for these reasons that the District Judge directed the trial Court to try the case all over again after framing all issues that arose in the case. Sitting as a Court of Revision, I fail to see how it can be said, with justification, that the learned District Judge has exercised his discretion improperly. Under paragraph 35 of the Himachal Pra-desh (Courts) Order, I can interfere in revision only if I come to the conclusion that the DistrictJudge has exercised his jurisdiction with material irregularity. In the light of what has been said above, I am unable to say that there has been any material irregularity in the exercise of jurisdiction by the District Judge.
4. Learned counsel cited the following rulings, which, as I shall show presently, are not applicable to the facts of this case.
'Hira Lal v. Ratan Lal', AIR 1944 All 293 (A). There, it was held: 'There is no law which can justify an appellate Court in remanding the case to the trial Court in order that a party, who in the opinion of the appellate Court--right or wrong--has failed to discharge the burden that lay on him, may be enabled to have another opportunity of producing evidence.'
As I have shown above, the District Judge remanded the case, because the entire trial was unsatisfactory and not because the respondents might be given another opportunity of producing evidence, which they had failed to adduce at the trial.
(b) 'Prithwichand Lal v. Sm. Oramba Sundari Dasi', AIR 1949 Pat 338 (B). In that case, the Patna High Court held: 'An appellate Court has undoubtedly a jurisdiction under Section 151, to make an order of remand in circumstances not covered by Order 41, Rr. 23 and 25. Such remand, however, must not be contrary to express provisions of the Code such as Order 41, Rule 27.'
As I have already shown, the case was remanded because the trial was unsatisfactory from more than one point of view and not to enable the respondents to fill up gaps in their evidence.
(c) 'Ramkrishna v. Daoosing', AIR 1953 Nag 357 (C). There, it was held that no Court can do indirectly which cannot be done directly. This ruling is not applicable here, because the District Judge was not debarred from remanding the case under Section 151.
(d) 'Gurbax Singh v. Natha Singh', AIR 1953 Pepsu 100 (D). There, the decision was that on the plaintiff's failure to make necessary allegations in his plaint, the appellate Court should not remand the case and give him an opportunity of proving a fact which he did not allege in the plaint. This ruling again is not applicable to the facts of this case for reasons stated earlier.
(e) 'Halayudh v. Tekchand', AIR 1953 Him P85 (E). There, with reference to the peculiar factsof the case involved, my learned predecessor held: 'Where the appellate Court remands the caseto the trial Court for re-decision by giving theplaintiff another opportunity to prove his caseeven though he had failed to do so in the trialCourt without any justification and in spite ofa clear issue, the order of remand is whollyunjustified.'
In the case before me, however, the facts are different. I have already pointed out that the trial by the Subordinate Judge was defective in more than one respect. It was for this reason that a trial de novo was ordered by the District Judge under Section 151.
(f) 'Jit Ram v. Chaudhari', AIR 1953 Bilaspur 17 (F). Here again, with reference to the facts of the case before him, my learned predecessor held that additional evidence admitted to fill up gaps in the evidence of the parties must be discarded. For reasons already stated, this ruling is not applicable to the facts of the present case.
5. I have already referred to the provisions ofparagraph 35 of the Himachal Pradesh (Courts)Order, which are applicable here in place of Section 115,Civil P. C. The learned District Judge cannot besaid to have acted in the exercise of his jurisdiction with material irregularity in remandingthe case to the Subordinate Judge for retrial.Under these circumstances, the revision petitionfails and is rejected.