Baikuntha Nath Dey v. Nawab Salimulla Bahadur — 1907 DIGILAW 156 (CAL)

JUDGMENT Stephen, J. - This appeal is brought by the Plaintiff in a suit brought to recover possession of 12 kuanis of land which he alleges were comprised in a putni lease, dated the 12th Bysak 1209, of the lands of Mouza Prajapatkhila. The respondents deny his title to the land on the ground that it belongs to Mouza Dankia, and was therefore not comprised in the Plaintiffs' lease. The sole question of fact in issue is therefore, which mouza the land belongs to and in the Munsif's Court was decided in the Defendant-Respondent's favour. On appeal the Subordinate Judge considered that a local investigation ought to be held to ascertain the exact effect of a chitta produced by the Defendants, and decided that "the case must therefore go back to the lower Court, a step to which both parties have agreed before me." He also ordered a Commissioner to be appointed who was to localise on a map already in evidence the dags mentioned in the chitta, so as to show whether they fell within or without the disputed land. He accordingly reversed the judgment of the Court below and remanded the case expressly under sec. 562 of the Procedure Code, ordering the lower Court to decide the case according to the instructions contained in his judgment. The Appellant has appealed against this order which is admittedly wrong because, as has been frequently laid down in this Court, the Munsif had decided the case, not, as the section provides on a preliminary point, but on the merits. The Respondent argues, however, that the Appellant is deprived of his right of appeal under the circumstances of the case, and it is therefore necessary to consider what happened on the order, before we deal with further points turning on the defects that it is alleged to contain. On the order being received by the Munsif certain preliminary proceedings took place of which I need notice one only, namely an application by the Appellant for a postponement of the proceedings on the ground that he wished to appeal to the High Court against the Judge's order, which was refused. The matter is of some importance as showing that the Appellant was then aware of a defect in the order. The matter is of some importance as showing that the Appellant was then aware of a defect in the order. In obedience to the order a Commissioner was appointed on the 2nd of March and after both parties had appeared before him returned his report which was adverse to the Plaintiff-Appellant's claim. The report came before the Munsif on the 17th March when the Appellant was present, but he refused to argue his case, saying that he had appealed to this Court against the remand order, which I take as being equivalent to a refusal to appear. After the Respondent had been heard the case was closed on the 20th March, and the Munsif delivered judgment adversely to the Appellant on the 29th March. Meanwhile however the Appellant had filed his present appeal on the 23rd March, that being the very last day on which it was open to him to do so. The Appellant has not appealed against the Munsif's judgment. Do these circumstances show that the Appellant has lost his right of appeal under sec. 588? 2. As far as proceedings subsequent to the remand order are concerned the case seems pretty plain. From the two cases, Jotinga Valley Tea Co. v. Chera Tea Co. ILR 12 Cal. 45 (885) and Madhu Sudan Sen v. Kamini Kanta Sen 9 C.W.N. 895 : s.c. ILR 32 Cal. 1023 (1905), the rule may be deduced that an appeal against the remand order presented before the suit is finally disposed of under that order, that is before the final decree in the suit has been passed, is good, but that a party cannot wait till the final disposal of the suit and then appeal against the interlocutory order without appealing from the decree in the suit. In the earlier case the appeal was presented at some unascertained period before the disposal of the suit, and it was held to be proper; in the latter case the appeal was presented not only after the suit had been disposed of, but after an application for its rehearing under sec. 108 had been made and rejected, and it was held that it could not be heard. We have been asked to extend the ruling in Madhu Sudan Sen v. Kamini Kanta Sen 9 C.W.N. 865 : s.c. ILR 32 Cal. 108 had been made and rejected, and it was held that it could not be heard. We have been asked to extend the ruling in Madhu Sudan Sen v. Kamini Kanta Sen 9 C.W.N. 865 : s.c. ILR 32 Cal. 1023 (1905) by substituting the closing of the case, when the power of either party to affect the issue ceased, for the disposal of the suit, which the language of the Court in distinguishing that case from the earlier one, shows to mean the passing of the final decree, but in so doing we should be acting against both decisions, and imposing a possibly doubtful for a very definite limit. It may be that the decision in Madhu Sudan Sen v. Kamini Kanta Sen 9 C.W.N. 865 : s.c. ILR 32 Cal. 1023 (1905) is not in agreement with the rather broad ruling laid down in Rameshur Singh v. Sheodin Singh ILR 12 All 510 (1889), where it was held that a defective order of remand vitiated all subsequent proceedings. But besides that that case was decided on a second appeal, which distinguishes it from the cases I have mentioned, its principle has been departed from in this Court in Mohesh Chandra Dass v. Jamiruddin Mollah ILR 28 Cal. 324 (1901) followed in Durga Kinker Norha v. Kouchai Ronza 5 C.L.J., 71 (1904), both also cases decided on second appeal, where it was laid down that proceedings subsequent to an illegal order of remand might be valid under certain circumstances. From this it appears that though the ruling in Madhu Sudan Sen v. Kamini Kanta Sen 9 C.W.N. 865 : s.c. ILR 32 Cal. 1023 (1905) cannot be directly invoked to maintain the argument that the present appeal cannot be heard, it does go to show that a decision on an illegal remand may be conclusive. And on the facts before us I cannot avoid the conclusion that the Appellants' consent to the remand makes It so. The basis of the decision In Madhu Sudan Sen v. Kamini Kanta Sen 9 C.W.N. 865 : s.c. ILR 32 Cal. 1023 (1905) may be regarded as being the consent of the Appellant to the proceedings subsequent to remand, implied by his not appealing against the order of remand during those proceedings. His express consent to those proceedings before they were ordered, must surely have at least as much force. 1023 (1905) may be regarded as being the consent of the Appellant to the proceedings subsequent to remand, implied by his not appealing against the order of remand during those proceedings. His express consent to those proceedings before they were ordered, must surely have at least as much force. His subsequent appeal, made though it was at the last possible date, and after he could In any way Influence the result of the proceedings, may take the case out of direct scope of the ruling I am considering; but I cannot regard it as a revocation of a consent made in the most binding form that was open to him. I must accordingly hold that the Munsif's decision was binding on him, and that in the language of the judgment in Madhu Sudan Sen v. Kamini Kanta Sen 9 C.W.N. 895 : s.c. ILR 32 Cal. 1028 (1905) he cannot be permitted to appeal against an interlocutory order, when he has not appealed against the decree in the suit. 3. The appeal therefore has been improperly brought; and I need not discuss further other defects that have been alleged to exist in the order. 4. The appeal is dismissed with costs. Mookerjee, J. 5. The circumstances under which the present appeal has been preferred on behalf of the Plaintiffs are not disputed and may be briefly outlined. 6. The Plaintiffs sued for recovery of possession of a parcel of land upon declaration that it is included in a lease granted in their favour by the landlords Defendants. The claim was resisted on various grounds of fact and law by the landlords as also by other persons who claimed to be tenants of the land under them. The Court of first instance went into all the questions raised by the parties and dismissed the suit on the merits. Upon appeal, the Subordinate Judge held that the suit could not be satisfactorily tried without a local investigation, and observed that "the case must therefore go back to the lower Court, a step to which both parties have agreed before me." He then gave direction as to the mode In which the case was to be retried, reversed the judgment and decree of the Court of first instance, and remanded the suit under sec. 562 of the Civil Procedure Code. 562 of the Civil Procedure Code. This order was made on the 28th November 1905, and was followed by a decree made on the 8th December 1905. The records were received back by the Munsif on the 14th December on which date he directed notices to issue on the pleaders of both the parties, fixed the 22nd January 1906 for the hearing of the case, and called upon the Defendants to deposit fees for the appointment of a Commissioner. After some adjournments the fees were deposited on the 27th January, and four days later, the Plaintiffs applied for postponement of the case till the High Court could dispose of an appeal against the order of remand. As a matter of fact, no appeal had been preferred at that time and the application was refused; the Munsif observed that the parties could not be prejudiced if the local investigation was made with a view to the comparison of the chitta on the disputed locality. On the 15th February, a Commissioner was appointed with the sanction of the District Judge. The Commissioner held a local investigation after due notice to both the parties, who, as the record shows, were represented before him, and took part in the proceedings. On the 17th March the Commissioner submitted his report which was not altogether favourable to the Plaintiffs, Appellants. The case was Bet down for final disposal on the 28th March, upon the whole evidence on the record. The pleader for the Plaintiffs stated that he had no other evidence to adduce and intimated that as an appeal had been preferred to the High Court against the order of remand, he would not address the Court; as a matter of fact, we now know that no such appeal had been presented to the High Court up to that time. The pleader for the Defendants was then heard and the Court reserved judgment. On the 23rd March 1906, the Plaintiffs preferred the present appeal to this Court against the order of remand made on the 28th November 1908. It may be observed that the appeal was presented on the very last day allowed by the law of limitation, after every single day to the exclusion of which the Appellants were entitled had been counted out in their favour. On the 29th March 1906, the Munsif delivered judgment and dismissed the suit. It may be observed that the appeal was presented on the very last day allowed by the law of limitation, after every single day to the exclusion of which the Appellants were entitled had been counted out in their favour. On the 29th March 1906, the Munsif delivered judgment and dismissed the suit. Against this decision, no appeal was preferred by the Plaintiffs, and the time, within which an appeal could have been preferred, has long since expired. The present appeal against the order of remand now comes on far disposal. In support of the appeal it is argued on behalf of the Appellants, first, that the order of remand, which purports to have been made under sec. 562 of the Civil Procedure Code, is in contravention of the provisions of sec. 564 and consequently void, with the necessary consequence that all the subsequent proceedings before the Munsif and the decree in which they resulted are invalid and infructuous; and secondly that the directions given by the Subordinate Judge for the retrial of the case are erroneous and prejudicial to the Appellants because they improperly restrict the scope of enquiry. In answer to this argument, it is contended by the learned Vakil for the Respondents, first, that even if the order under sec. 562 be assumed to be in contravention of sec. 564, it cannot be treated as made without jurisdiction, that it is at most an irregular order and that the defect, if any, was cured as the order was made by consent of both the parties, and secondly that even if the directions given in the order for further inquiry be assumed to be open to objection, the Appellants are not entitled to attack it on that ground, because they have made an election and taken the benefit of the order and their remedy, if any, was by way of an appeal against the final decree of the Munsif made after remand. 7. In support of his first contention, it has been argued by the learned Vakil for the Appellants, that as the case was not disposed of upon a preliminary point in the Court of first instance, upon the authority of the decision of this Court in Abraham v. Abraham ILR 17 Cal. 7. In support of his first contention, it has been argued by the learned Vakil for the Appellants, that as the case was not disposed of upon a preliminary point in the Court of first instance, upon the authority of the decision of this Court in Abraham v. Abraham ILR 17 Cal. 168 (1889), the Subordinate Judge had no power under sec 562 to make an order of remand, but he should, if necessary, have proceeded under sec. 568. It was argued, on the other hand, by the learned Vakil for the Respondents that as laid down in Perumbra v. Subramanian ILR 23 Mad. 445 (1809), which has been subsequently affirmed by a Full Bench in Sadhu Krishna v. Kuppan Ayyangar ILR 30 Mad. 54 (1006), sec. 562 is not exhaustive and a Court of appeal has inherent power to remand a suit for retrial as the justice of the case may require. It is not necessary to examine the broad question raised on behalf of the Respondents, because in my opinion, their contention that the Plaintiffs, by reason of their consent, are estopped from questioning the validity of the order, is well founded and must prevail. The learned Subordinate Judge states in his judgment that both parties agreed before him that the case should go back for local investigation and fresh decision. It was suggested, however, on behalf of the Appellants that if under sec. 564, the Subordinate Judge had no jurisdiction to make an order of remand under sec. 562, the consent of the parties could not confer upon him a jurisdiction which was not vested in him by law. This argument, in my opinion, is not well founded. No doubt, as laid down by their Lordships of the Judicial Committee in Ledgard v. Bull L.R. 13 I.A. 134 : s.c. ILR 9 All, 191 (1886), where a Court has no inherent jurisdiction over the subject matter of a suit, such jurisdiction cannot be conferred by consent. Here, however, there is no question of the inherent incompetency of the Court to deal with the matter before it. The question Is in substance not one of jurisdiction but rather of the power of the Court. This is clear from the decision of this Court in Gurdeo Singh v. Chandrikah Singh 5 C.L.J. 611 (622) (1907), where the essential elements of the jurisdiction of a Court are analyzed and explained. The question Is in substance not one of jurisdiction but rather of the power of the Court. This is clear from the decision of this Court in Gurdeo Singh v. Chandrikah Singh 5 C.L.J. 611 (622) (1907), where the essential elements of the jurisdiction of a Court are analyzed and explained. The question here is substantially as to the power of the Court to make an order of a particular description in the exercise of its undoubted jurisdiction over the subject matter of the litigation. That in the exercise of such jurisdiction, it may commit an error of law, in other words, that a Court has jurisdiction to decide wrong as well as right, is manifest from the judgment of their Lordships of the Judicial Committee in Malkarjun v. Narhari ILR 25 Bom. 387 (347)(1907). To treat such an error as destroying the jurisdiction of the Court is calculated to introduce great confusion into the administration of the law. If, therefore, the erroneous order of remand did not destroy the jurisdiction of the Court, the question arises whether the defect was curable by consent. That the defect is curable under certain circumstances is obvious from the decisions of this Court in the cases of Mohesh Chandra v. Jamiruddin ILR 28 Cal. 324 (1901), and Durga Kinkar v. Konchai Roma 5 C.L.J. 71 (1904), in which it was ruled that although when a Court of first appeal purporting to act under sec. 562, C.P.C., remands a case to the Court of first instance which had not decided the suit merely on a preliminary point, the order is erroneous, yet If the order of remand has been carried out, the subsequent proceedings are not void merely because of such error, and will be set aside only if it is established that the erroneous remand has affected the merits of the case. It is not necessary to discuss whether the error is rightly regarded as an irregularity or may more fittingly be described as an illegality, as it is due to a contravention of an express provision of the law; it is sufficient to hold that the error does not affect the jurisdiction of the Court, and consequently may be cured by consent. It may also be pointed out that the provisions in secs. It may also be pointed out that the provisions in secs. 562 and 564 are introduced for the benefit of litigants, so as to guard against a fresh trial of the whole cause by the Court of first instance and to protect them from the delay, trouble and expense of a fresh appeal; if, therefore, litigants find it the more advantageous course that the whole case should be retried and consent to such a procedure, an order of remand contrary to the provisions of sec. 564 is not null and void. It would be unreasonable to hold that a party, who has consented to such an order, is entitled to treat it as void and incapable of being validated by consent or waiver. The view, I take, is supported by the decision of Mr. Justice Subramania Ayyar in Manager of the Court of wards v. Ramasami ILR 28 Mad. 487 (1905). The first point taken on behalf of the Appellants, namely that the order of remand is void as made contrary to the provisions of sec. 564 must be overruled on the ground that the order was made with their consent. 8. The second ground taken on behalf of the Appellants seeks to assail the order of the Subordinate Judge on the merits. Here, again, they are met with the objection taken on behalf of the Respondents, that as the order of remand was carried out before the present appeal was filed, it is not open to the Appellants to challenge that order except by way of an appeal against the final decree. In support of this position, reliance is placed upon the case of Madhu Sudan Sen v. Kamini Kanta Sen 9 C.W.N. 895 : s.c. ILR 32 Cal. 1023 (1905) in which it was ruled that although sec. 588 allows an appeal against an order of remand, the party affected must avail himself of the privilege before the final disposal of the suit. In reply it is contended on behalf of the Appellants upon the authority of the decision in Jatinga Valley Tea Co. v. Chera Tea Co. ILR 12 Cal 45 (1885), that if an order of remand is made in violation of sec. In reply it is contended on behalf of the Appellants upon the authority of the decision in Jatinga Valley Tea Co. v. Chera Tea Co. ILR 12 Cal 45 (1885), that if an order of remand is made in violation of sec. 562, and is subsequently reversed, the final decree in the suit, which may meanwhile have been made, necessarily falls through; and the case of Madhu Sudan v. Kamini Kanta 9 C.W.N. 895 : s.c. ILR 32 Cal. 1023 (1905) is sought to be distinguished on the ground that there the appeal against the order of remand was preferred after final judgment had been pronounced by the Court of first instance, whereas hero the appeal was preferred after close of argument but before delivery of judgment. It must be conceded that there is this distinguishing feature between the two cases, and it may be a convenient rule to hold that a suit is not completely disposed of till judgment had been pronounced. It must be observed, however, that for some purposes, a suit is treated as disposed of, as soon as the arguments have been completed, although the Court takes time to consider judgment. Thus, if one of the parties dies after close of arguments and before delivery of judgment, judgment may be entered nunc pro tunc [Cumber v. Wane 1 Strange 426, 1 Smith L.C. 325, 338, 23 C.Y.C. 840 (1794), Surendra Keshab v. Durga Sundari ILR 19 Cal. 513 (1892); Chetan v. Balabhadra ILR 21 All. 314 (1899).] This rule can be justified on the fiction that the judgment, wherever It may be delivered, relates back to the date when the Court took time to consider judgment. Again if after judgment has been reserved, the Judge dies or vacates his office, leaving a judgment, it may be pronounced by his successor [Parbutty v. Higgin 17 W.R. 475 (1872).] On the other hand, even after a case has been heard and judgment reserved, there is nothing to prevent the parties from coming to a settlement and obtaining judgment in accordance with the terms of compromise. Under these circumstances, it can not be laid down as an inflexible rule of law that under all circumstances the final disposal of the suit must be taken to be the delivery of the judgment. Under these circumstances, it can not be laid down as an inflexible rule of law that under all circumstances the final disposal of the suit must be taken to be the delivery of the judgment. Even if we restrict, however, the final disposal of a suit to the delivery of judgment for the purposes of the rule laid down in Madhusudan v. Kamini Kanta 9 C.W.N. 895 : s.c. ILR 32 Cal. 1023 (1905), the objection taken by the Respondents ought to prevail on a wider ground. In my opinion, they ought to succeed on the ground that the Appellants are barred by the doctrine of election of remedies, indicated in the case of Beni Madhub Das v. Jotindra Mohun Tagore 11 C.W.N. 765 : s.c. 5 C.L.J. 580 (1907). There can be no doubt that when a litigant has the right to choose between two remedies which are not co-existent but alternative, he may select and adopt one as better adapted than the other to work out his purpose; but once he has made his choice, and adopted one of the alternative remedies, his act at once operates as a bar as regards the other, and the bar is final and absolute-It may be a question of some nicety in any Individual case, whether the remedies are alternative or co-existent and cumulative, for instance, there may be room for discussion whether upon the facts of the case of Bent Madhub v. Jotindra Mohun 11 C.W.N. 765 : s.c. 5 C.L.J. 580 (1907), the doctrine of election of alternative remedies had any application. The present case, however, seems to me to be reasonably free from any such difficulty. When an order of remand has been made, its validity may be challenged directly and immediately by an appeal under sec. 588, cl. (28) or indirectly under sec. 591, when an appeal is preferred against the final decree in the suit [Maheswar Singh v. Bengal Government 7 Moo, I.A. 302 (1858)]. The party affected by the order of remand, however, must make his election. 588, cl. (28) or indirectly under sec. 591, when an appeal is preferred against the final decree in the suit [Maheswar Singh v. Bengal Government 7 Moo, I.A. 302 (1858)]. The party affected by the order of remand, however, must make his election. He may, if he chooses, prefer an appeal against the order of remand and obtain a stay of proceedings during the pendency of the appeal; he may, on the other hand, carry out the order of remand, take the chance of a successful termination of the suit in his favour and in the event of defeat, prefer an appeal against the final decree in which the validity of the order of remand may be questioned. He cannot, however, if he has carried out the order of remand and taken the full benefit of it, turn round and prefer an appeal against the order of remand. In the present case, the Plaintiffs lost in the Court of first instance. They preferred an appeal and obtained, by consent of the Defendants an order for retrial of the suit, with liberty reserved to the parties to adduce fresh evidence. It may be conceded that their consent extended only to the form of the order and did not include the instructions which were given by the Subordinate Judge as to the mode in which the further enquiry was to be held. It may also be conceded that the Plaintiffs might have, therefore, questioned the order of remand on the merits by way of an appeal. They did not, however, do so. They fully availed themselves of the order of remand and assisted in the local investigation held by the Commissioner, the result of which did not, however, turn out to be entirely favourable to them. At the final hearing before the Munsif, they had an opportunity to present their whole case before the Court, but refused to do so upon the erroneous assertion that an appeal had been lodged in this Court. When the decision of the first Court turned out to be adverse to them, they had ample opportunity to prefer an appeal, but neglected to adopt that obvious course. Under these circumstances I must hold that when the Plaintiffs had once made the election, it was final and could not be retracted. When the decision of the first Court turned out to be adverse to them, they had ample opportunity to prefer an appeal, but neglected to adopt that obvious course. Under these circumstances I must hold that when the Plaintiffs had once made the election, it was final and could not be retracted. This view is amply supported by the principle deducible from the cases of Edwards v. Godfrey (1899) 2 Q. B.333, Taylor v. Hampstead Colliery Co. (1904) 1 K. B. 838 (844), Neale v. Electric, etc., Co. (1906) 2 K. B. 558. The cases of Beckley v. Scott (1902) 2 I. R. 504 and Issacson v. New Grand (1903) 1 K. B. 539 do not lay down any inconsistent principle, but only illustrate the remark that it may be difficult occasionally to determine whether two remedies are concurrent or alternative, and whether what has been done amounts to an exercise of option or election on the part of a litigant, so as to estop him from the pursuit of an alternative remedy. 9. On these grounds I must hold that it is not open to the Appellants to assail the order of the Subordinate Judge upon the second ground urged on their behalf. The appeal consequently fails and must be dismissed with costs.