Gulab Rai Kandoi v. Chairman And Members Of Jhumni Tilaiya, Notified Area Committee
1966-02-21
H.MAHAPATRA
body1966
DigiLaw.ai
Judgment H.Mahapatra, J. 1. The applicants were defendants in a money suit instituted by the Notified Area Committee for realisation of arrears of tax. The suit was decreed against them and, on appeal by the defendants the suit was remanded with a direction to the trial Court to take in evidence certain documents, which were produced in the appellate Court with prayer for their admission as additional evidence, and any other documents that may be filed by the parties before it. This application in revision is directed against that order of remand. 2. Learned Counsels whole argument was that, the documents which were tendered for admission as additional evidence by the plain tiff Notified Area Committee before the appellate Court could not have been taken into evidence or could not have been directed to be so taken by the trial Court within the meaning of any of the provisions under Order 41, Rule 27 of the Code of Civil Procedure. The first two clauses of that rule did not apply to this case and the last clause which enables the appellate Court to accept any document or to examine any witness only for the purpose of enabling itself to pronounce judgment, or for any other substantial cause, according to learned counsel, also did not apply to this case. No doubt, at one place the appellate Court observed that in the ends of justice those documents should be taken in evidence but that was a loose expression and did not import, as contended by learned counsel, inability on the part of the appellate Court to pronounce judgment in the appeal without those documents as evidence before it. This comment is very much justified. But, it cannot be said that the order of remand was only for the purpose of admitting those documents as additional evidence either before it or before the trial Court. Before recording the order for remand the appellate Court observed : "I find that the case has not been properly discussed. The learned Court below has also not discussed in his judgment the issues Nos. 1 to 3 distinctly and his judgment is confusing. I consider it to be a fit case in which an order of remand should be made. .".
The learned Court below has also not discussed in his judgment the issues Nos. 1 to 3 distinctly and his judgment is confusing. I consider it to be a fit case in which an order of remand should be made. .". This, in my view, brings this case within the purview of Rule 25 of Order 41, which lays down :- - "Where the Court from whose decree the appeal is preferred has omitted to. . . try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary . . . . refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required:. . .". Issues 1 to 3 in this case were important ones and also embraced the essential facts that were raised in controversy between the parties during the trial. Those issues were decided undoubtedly in the sense that some findings were recorded by the Trial Court on those issues, but, in the opinion of the appellate Court, the trial Court had omitted to try the issues properly, or to determine the questions of fact involved in those issues. The appellate Court discussed the trial Courts judgment in this respect also very elaborately before it came to the conclusion that it had failed to discuss and consider those issues properly, fully and distinctly. Once a case can be remanded under Rule 25 of Order 41 of the Code of Civil Procedure, additional evidence can be permitted. That rule says that where such a remand is made, the Court shall direct the trial Court to take the additional evidence required. I do not think that the lower appellate Court acted without jurisdiction in recording an order of remand in this case and at the same time directing the trial Court to give opportunity to both the parties to adduce evidence as they may like. It will be no doubt for the trial Court, when the case is taken up afresh, to consider which evidence is relevant and which evidence can be permitted to be adduced. The direction given by the lower appellate Court does not put any fetters on this discretion on the part of the trial Court. 3.
It will be no doubt for the trial Court, when the case is taken up afresh, to consider which evidence is relevant and which evidence can be permitted to be adduced. The direction given by the lower appellate Court does not put any fetters on this discretion on the part of the trial Court. 3. Learned Counsel referred me to the case of Pragash Singh V/s. Madan Mohan Prasad Singh, AIR 1960 Patna 47. The facts of this case are clearly distinguishable. That was a remand not under Order 41, Rule 25 of the Code of Civil Procedure. It was a remand in exercise of the inherent powers of the Court under Sec.151 of the Code. There, the appellate Court thought that in the interest of justice the appellants prayer for, comparison of the handwritings in question by a reliable Handwriting Expert should be allowed and that should be done not in the appellate Court but in the trial Court. Accordingly, he allowed the appeal and set aside the decision of the trial Court and remanded the case for a fresh decision, after getting the opinion of a reliable Handwriting Expert regarding the handwriting in the execution portion of the two handnotes in suit which was said to have been written by defendant No. 1 of that case. This Court held that such a remand for the sake of permitting additional evidence was not covered by Order 41, Rule 27 of the Code. The admission of the Handwriting Experts opinion or, for that matter, permitting the appellants to take recourse to examine a Hand writing Expert by way of additional evidence did not come within the purview of any of the three clauses of Rule 27 of Order 41 and, in that view, this Court held that, that order of remand was without jurisdiction of the appellate Court and set it at naught. I cannot see how that case can be brought to application to the facts here. I have already indicated that the present order was and should be taken to be within the meaning of Rule 25 of Order 41. In that view, it cannot be said that the order was without jurisdiction of the appellate Court. 4.
I cannot see how that case can be brought to application to the facts here. I have already indicated that the present order was and should be taken to be within the meaning of Rule 25 of Order 41. In that view, it cannot be said that the order was without jurisdiction of the appellate Court. 4. Learned counsel contended that the view taken by the appellate Court that the trial Court had not adequately, fully and distinctly considered and discussed issues 1 to 3 and the facts involved therein, was not correct. It may be a wrong view on its part, but all the same, it cannot be said that that was without its jurisdiction. An order passed within jurisdiction but wrongly is not amenable to correction in an application for civil revision in this Court. 5. Learned counsel placed before me another unreported decision which was a case in which the appellate Court had remanded the case for enabling a party to compare the admitted signature of the defendant with his disputed signature, by examining a Handwriting Expert as witness. That was also a case not covered by Rule 25 of Order 41. The learned Judge of this Court began the judgment by saying that, that was a remand under Sec.151 of the Code of Civil Procedure. He took the remand order to be admission of additional evidence at the appellate stage and the requisites provided under any of the three clauses of Rule 27 being inapplicable to the circumstances of that case, the learned Judge held that that order of the appellate Court permitting additional evidence was not proper and was without jurisdiction. In that view, that civil revision was allowed. The facts of the present case and the way in which the remand order has been made, after holding that the trial Court had omitted to consider issues 1 to 3 fully, properly and distinctly do not bring any similarity with the unreported decision, G. R. No. 995 of 1964 (Pat), disposed of by T. Nath J. on 9-2-1966. 6. For the reasons given above, the application is dismissed but without cost.