Decided on March 20,1954

SARDOOL Respondents


Ramabhadran, J. - (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. He elaborated 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 their evidence.
(2.) A perusal of the judgment of the learned District Judge, however, shows that in his opinion, the point of limitation was an important one and he was at a loss to understand why no issue had been framed on that point. He further found that the judgment of the Subordinate Judge was a sketchy one and no finding was given on issue No. 3. The following passages from the judgment of the District Judge are significant: "I have heard counsel for the parties and gone through the record. It is difficult for a Court of Appeal to feel satisfied with the way in which this 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, Sardool and Anr. (20.03.1954 -HPHC) Page 3 of 5 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 no t 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 District Judge 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.;

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