- (1.) THIS is an appeal by the defendants against an order of remand passed by the learned Civil Judge, Udaipur, on 18. 1. 56.
(2.) THE facts giving rise to it are that Devilal respondent filed a suit for redemption of a house situated in Udaipur City. His father, Pannalal, also joined him as a plaintiff at a later stage. THE plaintiffs' case was that the house in dispute once belonged to their ancestor Prithviraj, that it was mortgaged with the defendants for Rs. 151/- and that they had a right to redeem the same on payment of the mortgage money. THE suit was contested by defendant Kanhalyalal. It was averred by him that the plaintiffs were not the nearest heirs of deceased Prithviraj and they had no right to bring the suit. It was also urged that the property was mortgaged for Rs. 901/-, that defendant Gordhan was the nearest heir of the mortgagor and that he (Kanhaiyalal) had purchased that property from him for Rs. 2999/ -. THE trial court framed 13 issues. It recorded the evidence of both the parries and thereafter decided the case on 15. 12. 53, but only on issue No. 1 and 13 which ran as follows - (1) Whether Gordhan is grandson of Pitha and the nearest heir of the mortgagor Prithviraj ? (13) Whether Devilal was the nearest heir of deceased Prithviraj and was entitled to bring the suit? It was found by the trial court that plaintiff Devilal was unable to prove himself as the nearest heir of the mortgagor, Prithviraj, and on this point alone the suit was dismissed. Aggrieved by that decree, the plaintiffs filed an appeal which was heard by learned Civil Judge, Udaipur. It was urged before the appellate court that the trial Court had omitted to frame an important issue about the amount of the mortgage money and that it had arbitrarily shut out the evidence of the plaintiffs on 8. 4. 53. Both the arguments found favour with the appellate court and the decision of the trial court was therefore set aside on payment of costs amounting to Rs. 80/- by the plaintiff to the defendant. THE case was remanded with direction to allow the plaintiff to produce his evidence, which was shut out on 8. 4. 53, to frame one more issue about the amount of the mortgage money and then to decide the case afresh. It is against this order that the present appeal has been filed. Learned counsel for the respondents has raised a preliminary objection to the effect that the order passed by the learned Civil Judge is not appealable, because it is not covered by O. 41, R. 23 C. P. C. It is urged that, in the first instance, the suit was not disposed of on a preliminary point and secondly, the decree was reversed in appeal and, therefore, the provisions of O. 41, R. 23 C. P. C. are not attracted. It is further contended that this appeal cannot be treated even as a revision, because the objection raised by the appellants in this case can be raised in second appeal by virtue of sec. 105 C. P. C. In support of his argument, learned counsel has referred to Ratanraj vs. Kripalshanker (1) and Chandmal vs. Ram Kishan (2 ). In Ratanraj's case (1) the following two questions were referred to a division Bench of this court - " (1) Whether an order of remand made by an appellate court would be covered by O. 41, R. 23 Civil P. C. even though the decision of the trial court on the preliminary point on which the suit is decided is not reversed? (2) Whether an appeal against an order of remand purported to have been made under O. 41, R. 23 would lie under O. 43, R. 1 even though the order is not strictly covered by the first provision?" The first question was answered with the observation that "an order of remand made by an appellate court would not be covered by O. 41, R. 23 Civil P. C. unless the decision of the trial court on the preliminary point on which the suit is decided is reversed. " The answer to the second question was that "where the order of remand states expressly that it is under O. 41, R. 23, or where there is an order refunding court fee before the appeal is filed, an appeal would lie under O. 43, R. 1. " It is contended by learned counsel for the respondents that in the present case the learned Civil Judge has not made it clear if he had remanded the case under O. 41, R. 23, nor there was an order refunding court fee and therefore it should not be taken that he had remanded the case under O. 41, R. 23 C. P. C. It is further urged that the learned Civil Judge has sent case back for giving a fresh judgment after recording the evidence and he has not reversed the decision of the trial court and therefore it cannot be said if his order of remand is under O. 41, R. 23. According to learned counsel, the said order can only be said to have been passed under sec. 151 C. P. C, but an order under sec. 151 C. P. C. is not appealable. I have given due consideration to the above arguments. It is true that the learned Civil Judge has not made an express reference to O. 41, R. 23 C. P. C. At the same time, he has not mentioned at either if he was remanding the case because of the inherent powers under sec. 151 C. P. C. It has, therefore, to be determined by this Court whether the remand made by the learned Civil Judge can be governed by O. 41, R. 23. O. 41, R. 23 runs as follows - "remand of case by Appellate Court - 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 may further direct what issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit and the evidence (if any) recorded during the original trial shall, subject to all just exceptions be evidence during the trial after remand. " It would appear from the language of this rule that in order to attract its provision it is necessary - (1) that the case in which the decree is passed by the trial court and from which an appeal is preferred, should have been disposed of on a preliminary point, and (2) that decree should be reversed in appeal. It is contended by learned counsel for the respondents that the trial court did not decide this case on a preliminary point, but as I will presently show, this contention is not tenable. The perusal of the trial court's judgment shows that the suit was disposed of by it only on the question, that the plaintiff had no right to bring the suit, since he was not the nearest heir of Prithviraj deceased as compared to Gordhan. A preliminary point may be one of fact or of law and in the instant case it was a mixed question of law and fact and the case was decreed only on that point. Learned counsel for the respondents has referred to Mana Vikrama, Zamorin of Calicut vs. Karnavan Gopalan Nair (3 ). That case is not helpful to the respondents, because the Munsif had decided the case on merits and therefore it was held that this decision was not on a preliminary point and the Subordinate Judge, who heard the appeal, was in error in remanding the suit. He has next referred to Pillamkattil Nallampurakkhi Raman's son Kuppelan vs. K. N. Kunjuvalli (4 ). In that case also it was held that "where the question on which a case is disposed of involves an important issue relating to the merits of the case, such question is not a preliminary question". It may be pointed out that in A. T. S. P. Athoppa Chetty vs. Ramanathan Chetty (5) a division of the same (Madras) High Court observed that "the word's preliminary point 2 in Or. 41, R. 23, Civil P. C. connote a determination not affecting the merits of the case. " Again, in Malayath Veetil Raman Nayar vs. C. Krishnan Nambudri Pad (6), which is a full Bench case, it was observed by Schwabe, C. J. that the "words preliminary point" occur in Sec. 562 of the C. P. C. of 1892, which corresponded to the present O. 41, R. 23, and are interpreted in the same manner as I interpreted them above, by Mahmood, J. in Ramnarain vs. Bhawanjdin (1882) 9 All. 29 (u)- (1882) A. W. N. 104) where he lays down that the words are not confined to such legal points only as may be pleaded in bar of suit but comprehend all such points as may have prevented the court from disposing of the case on the merits, whether such points are. pure questions of law or pure questions of fact; and he gives as an instance a mortgage suit in which it is held that the plaintiff is not a son and heir of the mortgagor and therefore the suit it dismissed without entering into the merits of the various pleas relating to the mortgage. I respectfully agree with this observation. In the present case, the trial court did not enter into the merits of the mortgage, which was sought to be redeemed. In other words, it did not apply its mind to the question whether the property was mort -. gaged at all, for what amount it was mortgaged and whether the mortgage was subsisting and so on. The only question to which the trial court confined itself was whether the plaintiff was an heir of the original mortgagor and whether he was entitled to bring the suit. It was certainly a preliminary point, though it involved a mixed question of law and fact. It has already been pointed out above that the trial court had framed no less than 13 issues but without entering into the remaining 11 issues it decided only issues Nos. 1 and 13, which, in fact, were only on one point and thereby dismissed the suit. This view is supported by the observation which was made in Malayath Veetil Raman Nayar case to the effect (6) that if a mortgage suit is disposed of by merely holding that the plaintiff is not the son and heir of the mortgagor, that would only be a preliminary point and the decision thereon cannot be said to be a decision on merits. There is thus little force in the argument raised by learned counsel for the respondents. It is next urged by him that the decision of the trial court was not reversed by the Civil Judge and, therefore, O. 41, R. 23 does not come into play. In support of his argument he has again relied upon Ratanraj's case (1 ). In that case, Ratanraj had brought a suit for recovery of a certain amount on the basis of a Khath. The trial court had held that the document on which the suit was founded was inadmissible in evidence and therefore it dismissed the suit. The appellate court agreed with the trial court that the document was inadmissible, but it remanded the suit on the ground that the trial court had not gone into other issues and therefore it remanded the case to dispose it off after deciding whether the plaintiff could lead oral evidence with regard to the loan. It is thus clear that the appellate court had not' set aside the decision of the trial court on the preliminary point and still remanded the case for different reasons. Learned counsel for respondents has also referred to Thakur Laxman Singh vs. Thakur Raj Jujar Singh (7 ). In that case also the trial court had dismissed the suit on the ground that the order dated 20. 11. 48 was passed by the Rajmata Sahiba of Sirohi as a sovereign authority and, therefore, it could not be questioned in a court of law. The appellate court did not reverse the decision of the trial court on that point and it remanded the case simply because it thought that Government was a necessary party and that the suit should have been decided after the Government was brought on record. It is thus clear that in Thakur Laxman Singh's case (7) also the appellate court had not set aside the decision of the trial court. In the present case, however, the appellate court has certainly set aside the decision of the trial court and reversed the decree passed thereon. It is true that the decision has been set aside on the ground that the trial court had wrongly shut out the evidence of the plaintiff and that it should give its decision after recording evidence which the plaintiff sought to call through the court. Nevertheless, the decision was set aside and therefore, to my mind, the order of the learned Civil Judge is covered by Or. 41, R. 23, C. P. C. and the present appeal therefore does lie under O. 43, R. 1 C. P. C. The preliminary objection raised by learned counsel for the respondents is ruled out. The next question for determination is whether the order of remand passed by the learned Civil Judge is correct or not. It is urged by learned counsel for the appellants that the suit was instituted on 9. 11. 44, that the plaintiff-respondent was required to produce his evidence on 3. 8. 51, but he failed to examine his witnesses till 8. 4. 53 and under the circumstances, the trial court was justified in closing his evidence and refusing to call his witnesses thereafter. It has been pointed out that the appellate court itself had realised that the plaintiff was slack in producing this evidence and still it has allowed him a further opportunity by remanding the case without good grounds. It is also urged that when the plaintiff failed to satisfy the trial court about his right to bring the suit, it was altogether unnecessary for the appellate court to direct the trial court to frame an additional issue regarding the amount of the mortgage money.
(3.) I have given due consideration to these arguments. I have also looked into all the orders recorded by the trial court between 3. 8. 51 and 8-4 53 when the plaintiff's evidence was closed. It was no doubt unfortunate that although the suit was filed as early as 9. 11. 44, the plaintiff was not called upon to produce his evidence till 3*8-51. The blame for this delay, however, cannot be justly placed on the plaintiff, because it was the defendant who was required to produce his evidence earlier and it was he who took all these years to finish the same. I do not mean to justify the manner in which indulgence was shown by the trial court to both the parties, but what is meant to be stressed, is that the defendant himself having taken about 5 years to complete his evidence, it does not lie in his mouth to complain that the plaintiff could not produce his evidence within the time given to him. If the plaintiff were negligent, his negligence could certainly not be condoned on the ground that the defendant had shown similar negligence in the past, but the perusal of the order sheets shows that the plaintiff had called his witnesses through the court from the very beginning. The order-sheet dated 3. 8. 51 shows that the plaintiff had requested the court to call 3 witnesses, namely, Ramchander, Bhagwanlal and Kalulal, and he had also deposited the required processes along with fees. The case was fixed for hearing on 23. 8. 51. On that date, the presiding officer of the trial court was himself not present. At the same time, the witnesses were also absent and, therefore, they were ordered to be summoned again. It is obvious that this date was not changed on account of any fault on the part of the plaintiff. The case was then adjourned to 20. 9. 31. On that date, it was found that the witness Bhagwanlal was not served and summons of Ramchander was also not returned after service. Only one witness Kalulal was served, but he wanted his process through his office and, therefore, he did not turn up. This date was, therefore, changed to 19. 11. 51. It is clear that the plaintiff was again not to be blamed for the adjournment. When the, case came for hearing on 19. 11. 51, it was transferred from one court to another and so the case was adjourned to 20. 12. 51. On this date again, the witnesses were not present and the Munsif was also out of station. The case was then adjourned to 7. 3. 52, which had again to be changed because the Munsif was transferred, and so, the case was adjourned to 9. 5. 52. On this date, it was found that two witnesses, namely, Kalulal and Ramchander were not present, and therefore bailable warrants were ordered to issue to enforce their presence, and the case was adjourned to 22. 7. 52. On this date, Ramchander and Kalulal were present, but unfortunately they could not be examined because the Munsif had gone to Jodhpur. The case was again transferred on 25. 7. 52 from the court of City Munsif district. When the case came before Munsif District on 28. 7. 52, he adjourned it to 16. 9. 52 and ordered witness Ramchander to be called by warrant and Kalulal through summons. The case was adjourned to 13. 11. 52, but that date was changed by the court at the request of the plaintiff's counsel. One more date was similarly changed by the trial court and when the case came for hearing on 28. 1. 53 it was found that Kalulal was absent and so bailable warrants was ordered to issue against him. Ramchander was also ordered to be called by warrant. On this date, the plaintiff further requested the trial court to call his witnesses Bhagwanlal, Shobhalal, Shanker and Bhera as per his prior application dated 21. 1. 53. The court ordered summonses to be issued to these witnesses also and adjourned the case to 8. 4. 53. On that date, the court found that the plaintiff had failed to deposit fees for issuing warrants for Kalulal and Ramchander. As regards the remaining 4 witnesses, namely, Bhagwanlal, Shanker, Shobhalal and Bhera, it was found that Bhagwanlal, Shanker and Bhera were served, but they did not turn up inspire of service, while Shobha Lal could not be served. The plaintiff requested the court to issue warrants against the witnesses who had not turned up inspire of service, but that request was turned down and, thereafter, the case was decided against him. A review of all the order sheets given above, would show that the only occasion on which the plaintiff really failed to deposit the process fees for calling Kalulal and Ramchander by warrants was for 8. 4. 53. Before this date, he was throughout trying his best to compel the attendance of these witnesses. The order sheet of 8. 4. 53 would further show that even on that date, he offered to deposit the requisite expenses for calling other witnesses, who were already served, but did not care to appear and still the trial court refused to help him and closed his evidence. It is contended by appellant's learned counsel that the plaintiff had not disclosed the names of witnesses Shobhalal, Shanker and Bhera before 21. 1. 53 and therefore it was not obligatory for the trial court to call them. This argument is without any substance, because the trial court did issue summonses to call these witnesses on 21. 1. 53. If the trial court had not allowed the application of the plaintiff dated 21. 1. 53 on the ground of delay that would have been a different matter, but that application having been allowed and the witnesses having been served, it ought to have helped the plaintiff in compelling their attendance when the plaintiff was offering to deposit the requisite expenses on 8. 4. 53. Learned counsel for the appellants has referred to Mst. Dhan Kanwar vs. Mst. Raju Bai (8) and urged that the trial court could not refuse to issue the processes, but having issued the same it could very well refuse to adjourn the hearing for the attendance of the witnesses. It may be observed that the view expressed in the above case is not at all helpful to the appellants in the present case, because the adjournment was not refused by the trial court on the ground that the plaintiff had not filed the processes in time to be served upon the witnesses. In the present case, the summonses were served on the witnesses and there was no negligence on the part of the plaintiff. It is next urged by appellants' learned counsel that it was discretionary with the trial court to issue warrants for compelling the attendance of the witnesses. Learned counsel has referred to the provisions of O. 16, R. 10 (2) and (3) C. P. C. and urged that the court may issue warrant only if it has reason to believe that the production of evidence is material and that the witness has failed to attend without lawful excuse. According to learned counsel, it was open to the trial court to issue warrant or not. To my mind, there is no force in this argument, because the trial court did not refuse to issue the warrants on the ground that the production of the witnesses was not material. The perusal of the order-sheet dated 8. 4. 53 shows that the trial court did not apply its mind to this aspect at all and it closed the plaintiff's evidence without good grounds. It may be observed that O. 16 R. 10 is provided to enable the court to help the parties for compelling the attendance of those recalcitrant witnesses who fail to put in their appearance after service without lawful excuse. A party which seeks to compel attendance of bis own witnesses by a warrant already takes a serious risk of those witnesses turning hostile to it, on account of the process of warrant being issued against them and in such cases it is not proper on the part of the trial court to refuse its help to that party. The appellate court was not unjustified in setting aside the decision of the trial court when it had refused its help to the plaintiff in calling the witnesses and I do not think there are justifiable grounds for interference with the order of remand. As regards the direction of the appellate court about framing a new issue, it would suffice to say that if the appellate court had remanded the case only for that purpose, there could be good ground for the appellants to attack its order of remand, but that is not. It is not denied that the issue suggested by the appellate court was a necessary one. It seems that the appellate court has directed the trial court to frame this issue because the case was going back to that court for evidence of the patties. The appellate court was also correct in saying that the trial court ought to have decided all the issues, when the parties have examined their evidence on all the issues, instead of deciding the case piece-meal. ;