- (1.) THIS is a defendants' appeal against an order of, the District Judge, Jodhpur, dated 10-9-1952, by which he accepted the plaintiff's prayer for amendment of his plaint and remanded the suit to the trial court to be proceeded with according to law.
(2.) FT is not' necessary to state the facts, out of which this appeal has arisen, at any length. The plaintiff Ramlal's case was that he had entered into a partnership with the defendants in connection with the sale of curtain bullocks whom the defendants have sold but the latter had failed to pay the plaintiff the price realised by the sale of the bullocks as well as the profits made out of such sale. The plaintiff's allegation was that the bullocks had been purchased by him with his, own money. The defendants raised a number of pleas with which we are not concerned for the purposes of the present appeal, and the only contention which it is necesary to mention is that the plaintiff's suit as framed was not maintainable and that he should have brought a suit for dissolution of the partnership and rendition of accounts. A prayer was made to the trial Judge for amendment of the plaint during the course of the trial but it was turned down. The trial court framed 11 issues; recorded evidence on all of them, and decided almost all the issues in favour of the plaintiff but dismissed the suit on the ground that it was not maintainable in the form in which it was instituted. The plaintiff went in appeal to the learned District Judge. The latter came to the conclusion that the trial court should have allowed the amendment of the plaint in the circumstances of the case in conformity with the provisions of Order 6, Rule 17, C. P. C. , and in that view reversed the decree of the trial court and remanded the case back to it for trial according to law. This appeal has been preferred from the above order. Learned counsel for the respondent raised a preliminary objection as regards the maintainability of the appeal, His contention was two-fold. First, that the decision of the trial in the present case, inasmuch as it had been given on all the issues raised at the trial, could not be held to be a decision on a preliminary point within the meaning of Order 41 Rule 23, C. P. C. In the second place, it was contended that the lower appellate court in the present case had not reversed the finding of the trial court on the preliminary point but had in effect agreed with it. All it had done, however, was to have accepted the prayer of the plaintiff for the amendment of his suit, and it was, therefore argued with great force that such an order was not covered by the provisions of Order 41, Rule 23 and must be deemed to have been passed under Section 151, C. P. C. On the other hand- it was argued by learned counsel for the appellants that inasmuch as the court below had not specifically stated whether it had passed the order of remand under Order 41, Rule 23 or under any other provision of law, it must be deemed that the order passed was under that provision, and an appeal must be held to lie from such an order. Learned counsel referred me to -- 'kulsoominnissa v. Ram Prasad', AIR 1922 All 226 (A);--'gokul Prasad v. Ram Kumar', AIR 1922 All 254 (B); -- 'umesh Narain v. Secretary of State', AIR 1925 Cal 1157 (C) and -- 'mt. Sahibji v. Md. Sarwar Khan', AIR 1928 Lah 116 (D) in support of his contention. Now, it is the true that the lower appellate court in this case did not say in so many words whether it had passed its order of remand under Order 41, Rule 23 or not; but in my opinion, it will not be right merely from this to presume that its order had been necessarily passed under Order 41, Rule 23 even though the provisions of that rule had or could have no application whatsoever to the order passed in this case. With great respect to the learned Judges who have laid down the dicta to the contrary, I am unable to hold that they lay down good law. In my humble judgment, the provisions of Order 41, Rule 23, C. P. C. are clear and a case must satisfy those provisions before it can be held that that rule applies to a given case. Any other view, in my opinion, would lead to anomalous results, and one such result would be that a person aggrieved by an order of remand where no appeal would lie would have a right of appeal merely because the Judge passing the order or remand failed to mention that it was an order under Section 151, C. P. C. In support of this view, I may refer to -- 'sheolal v. Jugal Kishore', AIR 1940 Nag 349 (E ). In that case it was held that 'it is impossible to hold that an order of remand which does not and cannot fall within the purview of Order 41, Rule 23, must nevertheless be deemed to have been one under it simply because the Judge purported to act in accordance with its provisions. The rights conferred are one of substance and cannot be enlarged or whittled down by what Judges do or purport to do. These rights go to the very roots of the court's jurisdiction. The Legislature has chosen to say that there shall be no appeal from an order of remand unless the matter falls under particular provisions of the Code. If it does not so fall, then the court has no jurisdiction to act under those provisions and it cannot confer jurisdiction upon itself by purporting to do that which it has no power to do. " I respectfully agree with these observations and hold that it is an erroneous view of law to presume that where an order of remand has not been passed under Order 41, Rule 23, it should be presumed to have been so passed; for it the courts raise such a presumption, they would be legislating by conferring a right of appeal where it does not exist. The result is that I do not presume at all that the order of remand in question was passed under Order 41, Rule 23, C. P. C. in the present case, and that it is a matter for determination whether it was at all so passed. The material portion of Order 41, Rule 23 is in those terms: " Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate Court, may, if it thinks fit, by order remand the case and. . . . . . " The contention of the respondent is that the trial court did not dispose of the suit upon a preliminary point at all. The reasoning is that it had recorded evidence on all the issues and then disposed of the case as a whole, and in doing so it did not dispose of the suit upon a preliminary point. It was further argued that the fact that the trial court had decided almost all the issues in favour of the plaintiff except the issue as to the maintainability of the suit, which it decided in favour of the defendants, did not make any difference whatsoever to this position. It appears to me that there is force in this contention. Reference may be made again to AIR 1940 Nag 349 (E) which has already been referred to above. The learned Judges held that "the remand contemplated by Order 41, Rule 23 is one made in a case where the first Court has disposed of the suit on a priliminary point so as to exclude evidence of essential iacts. Where every single issue which the parties had raised in the first court was decided except one and the parties were not shut out from adducing any evidence they pleased upon it and the decision came later, alter the case had been, tried as fully as the parties 'desired, such decision cannot be considered as one upon a preliminary point. " This view appears to receive considerable support from the decision of their Lordships of the Privy Council in -- 'muzhar Hossein. v. Mt. Bodha Bibi', 17 All 112 (F) where they deal with Section 562 of the old Code which has now been replaced by Order 41, Rule 23. It was observed by their Lordships in the last mentioned case that the remand contemplated by Section 562 was one made in a case where the first court had disposed of the case on a preliminary point so as to exclude evidence of essential facts. It is obvious that in the present case the parties had led their entire evidence on tacts and further that the learned trial Judge had given his findings on all the issues raised. In these circumstances, I hold that the trial court had not decided the plaintiff's suit on a preliminary point within the meaning of Order 41, Rule 23, Civil P. C. So far as the further contention of the respondent is concerned, it is that where an original court has disposed of the suit by trying all the issues before it and the appellate court allows an amendment of the plaint and remands the suit for trial on the amended plaint, the order of remand is one which is not passed under Order 41, Rule 23 but falls within the ambit of Section 151, C. P. C. , and the order of the learned District Judge being of the latter character, no appeal is competent from it. I am of opinion that this point is also not without force. I say nothing here in respect of these cases where the order of remand passed by a lower appellate court itself amounts to a decree within the meaning of Section 2, C. P. C. , it having conclusively decided certain rights relating to the parties. But where this is not the case, I am clearly of the opinion that such an order of remand is one which is passed under the inherent powers of the court and does not satisfy the conditions laid down under Order 41, Rule 23, C. P. C. It appears to me in a case like the present that the appellate court in fact takes the same view as the trial court and is not prepared to give a different finding on the point which has prevailed with the original court. What it really does is that accepting that finding it further comes to the conclusion that the original court should have permitted an amendment of the plaint which it did riot do and on that footing reverses the decree of the trial court and directs the trial of the suit on the amended plaint. It may further be pointed out that an order allowing or refusing an amendment of the plaint 'per se' has not been made appealable under the Code of Civil Procedure. Such an order, in my opinion, cannot be held to fall within Order 41, Rule 23, C. P. C. but is an order which must be taken to have been passed under the inherent powers of the court, that is, under Section 151, C. P. C. Reference may be made in support of this. view to -- 'mahomed Shah v. Talabhussain Shah', AIR 1924 Lah 245 (G); --'venkata Radhakrishna Rao v. Venkata Rao', AIR 1925 Mad 229 (H) and -- Vaithilingam v. Kandaswami', AIR 1931 Mad 1 (I ). For these reasons I hold that the order passed by the learned District Judge in the present case was not an order under Order 41, Rule 23. C. P. C. and is, therefore, not appealable under Order 43, Rule l (u), C. P. C. This appeal is, therefore, incompetent and must fail. Learned counsel in the last resort prayed that this appeal may be treated as a revision and decided as such. This contention, however, is without any force in view of the decision of this Court in -- 'swaroop Narain v. Gopinath', AIR 1953 Raj 137 (FB) (J ). Consequently, this appeal fails and is here by dismissed. The costs of this appeal will be costs in the cause. . ;