Posted On by &filed under Allahabad High Court, High Court.

Allahabad High Court
Ahmad Ullah Khan And Ors. vs Ali Sher Khan on 6 July, 1907
Equivalent citations: (1907) ILR 29 All 660
Author: D A Griffin
Bench: Dillon, Griffin


Dillon and Griffin, JJ.

1. This appeal arises out of a suit for profits which was brought by the plaintiffs respondents, who are co-sharers, against the defendant appellant, who is the lambardar, for the years 1309 and 1310 F. They claimed Rs. 260 on account of such profits. The suit was tried by the Assistant Collector of the Kairana sub-division in the district of Muzaffarnagar, who gave the plaintiffs a decree for Rs. 135. They appealed to the District Judge, and ultimately the appeal came on for hearing before the Additional Judge of Saharanpur, By an order, dated the 24th of January 1905, under Section 560 of the Code of Civil Procedure, he remanded the case to the Court which had tried it for findings upon certain issues and for the taking of additional evidence. The case then apparently found its way (how, it does not appear) to the Court of the Assistant Collector of the “headquarters pargana. “We may assume that it was by an order passed by the Collector. At the very earliest opportunity the defendant appellant objected to the jurisdiction of the Court, but his objection was overruled. The fresh evidence directed to be taken was so taken and, together with the findings thereon, was returned to the Court of the District Judge of Saharanpur. Those findings were entirely in, favour of the defendant appellant, who did not renew his objection in the lower appellate Court as to the jurisdiction of the Assistant Collector. The lower appellate Court after due consideration of the evidence and the findings gave the plaintiffs a decree for a somewhat larger amount than had been given to them by the Assistant Collector in the first instance and modified the decree accordingly. The defendant has now appealed to this Court, and the only plea that has been urged is that the Court of the Assistant Collector of the “headquarters pargana,” Muzaffarnagar, had no jurisdiction to try the issues which had been remitted by the lower appellate Court, and that therefore all subsequent proceedings are null and void.

2. The learned Counsel who appeared oil behalf of the appellant called our attention to the ruling in the case of Sabri v. Ganeshi (1831) I.L.R., 14 All., 23. We Lave carefully considered that case, and though it is not exactly on all fours with the case before us, we think that its principle applies. Furthermore, it seems to us upon consideration of Section 566 of the Code of Civil Procedure, that it clearly lays down that the issues remitted for trial under that section are triable only by the Court which was originally seised of the case. It was argued by the learned Counsel who appeared on behalf of the plaintiffs respondents that the defective procedure in this case amounted to a mere irregularity, and as such was covered by the provisions of Section 578 of the Code of Civil Procedure, The appellant’s objection if, no doubt, a very technical one, but we are of opinion that the defective procedure amounted to something more than a mere irregularity. We think that the Court which carried out the remand order had no jurisdiction to try the issues remitted by the lower appellate Court, and that therefore Section 578 does not apply to this case. In this view we allow the appeal, set a side the order of the Court below and we direct that Court to restore the appeal to its original number in the register of appeals, and to take it up at the stage at which it had arrived when the order of remand was passed on the 24th of January 1905 and to deal with it according to law. The costs of this appeal will be the costs in the cause.

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