Ramachandra Joishi vs Hazi Kassim on 15 April, 1892

Madras High Court
Ramachandra Joishi vs Hazi Kassim on 15 April, 1892
Equivalent citations: (1893) ILR 16 Mad 207
Author: M Ayyar
Bench: M Ayyar, Best


Muttusami Ayyar, J.

1. This is an appeal preferred under Letters Patent against the order of Mr. Justice Parker. In the suit to which it relates, three issues were raised for decision, viz., (1) whether the plaintiff performed puja to certain idols, (2) whether the rice claimed in connection with it was a charge on the land mentioned in the plaint, and (3) what was the price of such rice. The parties to this appeal adduced evidence on all the three issues and though the District Munsif recorded it, yet he held on the second issue that the rice claimed was not a charge on the land and dismissed the suit without determining the other issues. On appeal the Subordinate Judge determined the second issue in the affirmative and remanded the case. Mr. Justice Parker considered that the decision on the second issue was not a decision on a preliminary point, and that the order of remand was illegal. He was also of opinion that neither the partition deed nor the sale subject to the plaintiff’s claim created a charge, and set aside the order of remand and directed the Subordinate Judge to replace the appeal on his file, to come to a revised finding on the second issue after considering Exhibits A and B, and to dispose of the case in accordance with law. Two objections are taken to this decision, viz., (1) that the order of remand was legal, and (2) that as the respondent purchased subject to the charge claimed by the plaintiff, the decision of the Subordinate Judge on the second issue was correct.

2. As regards the first objection, it must be observed that the District Munsif recorded evidence on all the three issues, and even assuming that the decision on the second issue was one on a preliminary point, it was still not such a decision as excluded evidence on the other issues and created a necessity for the investigation of the merits. The order of the learned Judge is quite correct according to Section 562 of the Code of Civil Procedure as it stood prior to the Amending Act VII of 1888.

3. The real question is whether the amendment made by the last mentioned Act makes any difference. The amendment consisted in the omission from Section 562 of the words ” so as to exclude any evidence of fact which appears to the Appellate Court essential to the determination of the rights of the parties ” and in the substitution at the end of the section of the word ” determine ” for the word ” investigate.” The condition necessary to justify a remand consisted prior to Act VII of 1888 in the exclusion of evidence of a material fact, or in the omission to investigate the merits as the consequence of the decision on a preliminary question which the Appellate Court could not uphold. The condition necessary to a remand after the date of the Amending Act is the omission to determine the merits. Further, it seems to me that the expression “preliminary point ” was used in Section 562 not in the sense of some point collateral to the merits, but of some point preliminary to a general investigation of the merits. This is the sense suggested by the context of the section. If it is taken in the sense of a point not relating to the merits at all, there will be no power of remand when the Court of First Instance, owing to an erroneous decision on some point of law under Section 146, or on imperfect view of the evidence under Section 154′” does not investigate the rest of the merits. In this view the words ” preliminary point” must be taken after the amendment to refer to some point either collateral to the merits which precluded their determination altogether, or some particular question which though relating to the merits precluded their general determination. The intention which the amendment suggests and which is confirmed by the report of the Select Committee was not unduly to limit the discretion of the Appellate Court as was found to have been done by Section 562 as it originally stood.

4. It would, therefore, be competent, I think, for the Appellate Court after the amendment to remand a case when the Court of First Instance mechanically records evidence on all the issues and at the final hearing decides the suit on some particular issue without expressing any opinion on the other issues, if in the circumstances of the case the Appellate Court considers a remand desirable. The contention, therefore, that the Subordinate Judge had a discretionary power to remand after the date of the Amending Act and that his order was legal must prevail.

5. As for the second objection, I see no reason to think that the learned Judge was in error in calling upon the Subordinate Judge to re-consider his finding on the second issue. The decision of that issue must depend on the question whether what respondent actually bargained and paid for was the land burdened with a charge of 4 muras of rice to be paid to appellant every year or the land affected only with notice of a claim to that effect. The sale-certificate D which is statutory evidence of his title describes the land purchased as being subject to the charge, but this cannot of itself be treated as conclusive. If as observed by the learned Judge the order on the claim petition C was made without any enquiry as to whether the claim was well founded, and if there is no legal basis on which to hold that there was a charge, a presumption might arise that what the purchaser intended to buy and did buy was the land itself though with notice of respondent’s claim, and that the description in Exhibit D was erroneous. Whether it was a misdescription or not, is a question of fact which it was for the Subordinate Judge to determine. His remark that Exhibit D is conclusive, and that no other circumstance needs be considered cannot be accepted as sound. Moreover his decision that there is a charge only in regard to the amount now claimed, but not necessarily so in regard to payments which may hereafter become due is not intelligible since if there is a charge in the one case, there must be a charge in the other also. We are not referred to any evidence showing that the order on the claim petition C was made after an enquiry as to whether there was really a charge. The partition-deed did not, admittedly, create a charge and the Subordinate Judge did not consider Exhibits A and B. He held apparently that the purchaser was not entitled to show that there was a misdescription in the sale-certificate, and I agree with the learned Judge that this view cannot be supported. If, as observed by him, the order on C was passed without any enquiry and if there was no other legal foundation for a charge, I am not prepared to say that the order in requiring the Subordinate Judge to consider Exhibits A and B and to come to a fresh finding on the second issue is open to question. I would, therefore, set aside the order of the learned Judge so far as it declares that the Subordinate Judge was not competent to remand the case and otherwise confirm it. I would direct each party to bear his costs of this appeal.

Best, J.

6. The learned Judge has set aside the order of the Subordinate Judge (which remanded the suit for trial by the District Munsif) on the ground that ” though the District Munsif decided the suit upon the second issue, he did not decide it upon a mere preliminary point,” and that therefore the Subordinate Judge should not have remanded the suit under Section 562 of the Code of Civil Procedure, but should have called for findings upon the other points which arose.

7. On behalf of the appellant it is contended that the Subordinate Judge’s order remanding the suit was right, as the District Munsif had dismissed it upon a “preliminary point,” and the decree upon such preliminary point was reversed in appeal.

8. The first question is therefore as to the meaning of the phrase ” preliminary point” as used in Section 562.

9. For the respondent it is contended that it means some point, such as limitation or res judicata which can be decided without in any way entering on the merits, of the case. I am however unable to find in the wording of Section 562 anything warranting this limited construction of the words. There might have been ground for thus narrowing the meaning of the section prior to its amendment by Act VII of 1889, when it contained the words ” so as to exclude any evidence of fact which appears to the Appellate Court essential to the determination of the rights of the parties.” Bub these words were removed for no other reason than that they were ” found to limit unduly the discretion of Appellate Courts.” see Report of the Select Committee, published in the Gazette of India, dated 10th March 1888. However, even prior to this enlargement of the scope of the section, the opinion was expressed by Mahmood, J., that the expression ” preliminary point,” as used in the section, ” is not confined to such legal points only, as may be pleaded in bar of suit, but comprehends 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 qustions of fact.” see Sheoambar Singh v. Lallu Singh I.L.R.,9 All., 32. Cf. also judgement of Edge, C.J., and Mahmood, J., in Muhammad Allahdad Khan v. Muhammad Ismail Khan I.L.R., 1 All., 289. I take it that a suit is disposed of on a preliminary point within the meaning of Section 562 when by reason of the decision on one or more of the issues recorded in the case, there has been no necessity for the consideration of the other issue; and that if in such a case the Appellate Court finds that the issues considered have been wrongly decided, and the suit in consequence wrongly dismissed, and that a consideration of the other issues is necessary for a proper disposal of the suit a remand is allowable. Nor do I see any good reason for putting a narrow construction on the wording of the section, as none of the parties to the suit can be prejudiced by sending the case back to the Original Court for disposal of the case after deciding the issues which it has not considered in consequence of its decision on other issues which have been found on appeal to have been wrongly decided.

10. In the present case there has been no decision by the District Munsif on the first and third issues, which refer respectively to the performance of puja alleged by plaintiff and to the price of the rice claimed, a decision on these points having been considered unnecessary by reason of the finding on the second issue in the negative and in favour of the defendant as to the charge-ability for the rice of the land in defendant’s possession. In my opinion on the Subordinate Judge’s finding in appeal that the decision on this second issue was wrong, he had a discretion to remand the suit for disposal by the District Munsif on the other issues.

11. But was the Subordinate Judge right in holding that the second issue had been erroneously decided? As observed by the learned Judge of this Court the mere fact of the sale-certificate D reproducing the order passed on the claim petition, that the property is sold with notice of the claim that it is liable to a charge, will not make such charge binding on the purchaser if the claim has in fact no legal foundation; and as the Subordinate Judge had accepted the statement in D as conclusive and consequently did not consider the other evidence on the point, I concur in upholding the order so far as it remands the case for restoration to the file of the Subordinate Judge for reconsideration of the second issue and disposal according to law, and also in its direction as to costs; and I agree with my learned colleague in directing each party to bear his own costs of this appeal.

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