Kateshar Singh v. Jagdish Singh — 1944 DIGILAW 170 (ALL)

JUDGMENT Thomas, C.J. and Ghulam Hasan, J. - This miscellaneous appeal by the Defendant No. 2 is directed against the order of remand passed by the Addition Civil Judge of Gonda, setting aside the judgment and decree passed by the Munsif of that place and ordering him to retry the case and give his independent findings upon the issues framed in the case. 2. A preliminary objection has been raise that no appeal lies as the order of remand passed by the lower appellate Court is one under the inherent powers of the Court and not under Rule 23 of Order XLI of the CPC as amended by this Court. We have heard the Appellant's counsel at length and are of opinion that the preliminary objection has force and must be allowed. 3. In order to determine this objection a few preliminary facts may be stated. The suit was one for a declaration of title. The Plaintiff's case was that he was entitled to half the property of one Lal Bahadur while his brother Defendant No. 3 was entitled to the other half. Defendants Nos. 1 and 2 having obtained illegal possession over the property of Lal Bahadur, a suit was instituted by him, his mother and his brother against Defendants Nos. 1 and 2, but it was withdrawn. It was alleged that the withdrawal of the suit was under undue influence, misrepresentation and fraud, that there was no compromise between the Plaintiff and the Defendants Nos. 1 and 2 and even if there was any it was not binding upon the Plaintiff. Accordingly the Plaintiff sued for a declaration. 4. The suit was contested by Jagdish Singh, Defendant No. 2. Defendant No. 1 died during the pendency of the suit and his name was struck off. 5. The trial Court framed the following ten issues in the case:-- "1. Was the property in suit allotted to the share of Lal Bahadur on partition and was he competent to bequeath it? Or Was it the joint family property of Lal Bahadur and Defendants Nos. 1 and 2 as alleged? 2. Is the property in suit not transferable? 3. Did the Plaintiff put in the application for withdrawal in the previous suit under undue influence, misrepresentation and fraud as alleged in the plaint and para 29 of the republication? 4. (a) Was there a compromise as set up by Defendants Nos. 1 and 2 as alleged? 2. Is the property in suit not transferable? 3. Did the Plaintiff put in the application for withdrawal in the previous suit under undue influence, misrepresentation and fraud as alleged in the plaint and para 29 of the republication? 4. (a) Was there a compromise as set up by Defendants Nos. 1 and 2? (b) Was it a family settlement as alleged? 5. Is the compromise (if any) not binding on the Plaintiff, in view of the decree passed in favour of Defendant No. 3? 6. Can the Plaintiff be placed in the position which he had before the petition mentioned in para 13 of the plaint? 7. (a) Is the suit as brought not maintainable? (b) Is it not maintainable in the Civil Court as alleged? 8. Has the Plaintiff been in possession within limitation? 9. (a) Is the Plaintiff entitled to the declaration mentioned in para 22 (1) of the plaint? (b) Is he entitled to an eight annas or five annas share out of the property of Lal Bahadur? 10. To what relief is Plaintiff entitled and against which of the Defendants?" 6. By an order dated the 12th May, 1943, the learned Munsif remitted u/s 288 of the U.P. Tenancy Act issues Nos. 1, 2, 3, 4(a) and 4(b), 5, 6 and 9(b) to the Revenue Court for its findings. The Revenue Court returned its findings on these issues. 7. When the case came back from the Revenue Court the Counsel for Defendant No. 2 stated on the 23rd December, 1943, that he withdrew the pleas incorporated in issue No. 7(a) and 7(b) and that they may be decided against him. Accordingly the learned Munsif decided issues Nos. 7(a) and 7(b) against Defendant No. 2. He gave an alternative finding upon issue No. 8. Under issues Nos. 9(a) and 10 he held that in view of the findings of the Revenue Court the Plaintiff was entitled to no relief against the Defendant. In view of these findings he dismissed the Plaintiff's suit. 8. The Plaintiff preferred an appeal. The learned Additional Civil Judge held that the trial Court had erred in remitting issues Nos. 1 to 6 and 9(b) to the Revenue Court and that the suit was cognizable by the Civil Court. In view of these findings he dismissed the Plaintiff's suit. 8. The Plaintiff preferred an appeal. The learned Additional Civil Judge held that the trial Court had erred in remitting issues Nos. 1 to 6 and 9(b) to the Revenue Court and that the suit was cognizable by the Civil Court. Accordingly he set aside the decree of the learned Munsif and remanded the case to him for giving his own findings on the issues framed in the case. This order obviously means that the trial Court was directed to give its independent findings upon the ten issues irrespective of the decision of the Revenue Court on some of the issues remitted to that Court. 9. It is clear from the above narration of facts that whether the Munsif was right or wrong, there can be no doubt that all the issues framed by him had been decided by him and there was nothing which he left undecided. Whether in deciding the issues the learned Munsif was influenced by the findings of the Revenue Court can make no difference to the fact that the issues framed by him were decided by him. A wrong decision, although liable to be (Sic) by a Court of appeal, is nonetheless a decision. We hold, therefore, that the amended Rule 23 of Order XL1 of the CPC does not apply to the case. That rule clearly contemplates the case of a remand where the lower appellate Court has reversed the decree of the trial Court and all questions arising in the case have not been decided by the trial Court. In the present case, however, although the lower appellate Court has reversed the decree all questions arising in the case bad been decided by the trial Court and no question had been left undecided. There are a number of decisions of this Court where it has been held that in such a case no appeal lies. (See Barkat Beg v. Azim 1943 O.A. 195 : O.W.N. 310 and Hari Saran Das v. Rudra Pratap Narain Singh 1944 O.A. (C.C.) 22 : A.W.R. (C.C.) 22 : O.W.N. 50). 10. Two cases of this Court upon which reliance has been placed on behalf of the Appellant are Mathura Prasad v. Sita Ram 1940 O.A. 465 : A.W.R. (C.C.) 248 : AIR 1940 Oudh 367 and AIR 1943 274 (Oudh) . The first case is clearly distinguishable. 10. Two cases of this Court upon which reliance has been placed on behalf of the Appellant are Mathura Prasad v. Sita Ram 1940 O.A. 465 : A.W.R. (C.C.) 248 : AIR 1940 Oudh 367 and AIR 1943 274 (Oudh) . The first case is clearly distinguishable. In that case the trial Court had framed eight issues but did not decide any of those issues as a joint application was made by the parties agreeing to withdraw their respective pleas and to undertake to abide by the oath of Defendant No. 3 in accordance with the terms contained in the application. The oath was taken and the Plaintiff's suit in accordance with the oath, was dismissed with costs. This decree was reversed on appeal. It was rightly held therefore that the appellate order of remand fell under Rule 23. The latter case is no authority for the proposition that an appeal lies against an order of remand even though it is not under Rule 23. It is not denied that in this case the point whether the appeal did or did not lie was not raised and was not considered by the Court. 11. Reference has also been made to the following decisions of the Allahabad High Court viz., 1. Shiam Sunder v. Venney Prakash 1941 A.W.R. (H.C.) 301 : O.A. (Sup) 483 : A.L.J. 604.& 2. Hira Lal v. Ratan Lal 1944 O.A. (H.C.) 192 : A.W.R. (H.C.) 192 : A.L.W. 367. 12. Neither of these cases in our opinion applies to the circumstances of the present case. In the first case the trial Court had struck off the defence of the Defendants and decreed the suit ex parte without recording findings on the questions arising in the case. The only judgment was "Evidence recorded. Claim proved Prima facie." It was held, therefore, that the remand came under Order XLI Rule 23 of the Code of Civil Procedure. 13. The second case was decided upon a preliminary issue and the trial Court dismissed the suit in view of its finding on that issue. It did not decide the other issues in the case. The remand order was therefore, rightly held to fall under Rule 23. 14. The case in Kulsum un-nissa v. Ram Prasad (1922) 44 All. 492 has no bearing. It arose before Rule 23 was amended. 15. It did not decide the other issues in the case. The remand order was therefore, rightly held to fall under Rule 23. 14. The case in Kulsum un-nissa v. Ram Prasad (1922) 44 All. 492 has no bearing. It arose before Rule 23 was amended. 15. Accordingly we hold that the order of remand being not under Rule 23 but under the inherent powers of the Court no appeal lies against such an order. 16. For the Appellant it has been urged that if it be held that no appeal lies, this appeal may be treated as a revision u/s 115 of the Code of Civil Procedure. Reliance is placed on AIR 1940 367 (Oudh) , where an appeal was allowed to be converted into a revision. We do not think that the present is a fit case in which we should be inclined to interfere in revision. In the case referred to the trial Court had dismissed the suit holding that the Plaintiff had failed to prove that he was dispossessed by any of the Defendants. The lower appellate Court allowed the Plaintiff to amend his plaint so as to base his claim not on his dispossession but on the allegation that Defendant No. 1 was not the owner in possession of some of the property sold. The reliefs for possession and damages were entirely deleted and the suit was confined only to a prayer for the recovery of Rs. 768, the sale price with interest and all the Defendants other than the Defendant No. 1, were discharged. The lower appellate Court then remanded the case for a trial de novo upon the new cause of action. The learned Judges while holding that no appeal lay against the order of remand not falling within the purview of Order XLI Rule 23 of the CPC treated the appeal as a revision and set aside the order of the lower appellate Court directing it to hear the appeal on the merits of the pleadings and the evidence as they stood before its order. 17. 17. In the present case the trial Court was almost entirely influenced by the findings of the Revenue Court and as the lower appellate Court found that the Civil Court alone had the jurisdiction to determine those questions and not the Revenue Court, it remanded the case for fresh findings to be given by the trial Court on all the issues in the case. We do not think that the lower appellate Court committed any illegality or acted with material irregularity in remanding the case in the circumstances. Accordingly we decline to treate this appeal as a revision and hold that no appeal lies. We dismiss the appeal with costs. 18. Civil Miscellaneous Application No. 694 of 1944 for stay is dismissed and the interim order of stay passed on the 24th July, 1944, is also vacated.