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Petitioner: NAWAB MEAN CHOWDHURY VS Respondent: BEGUM SYEDA BADRUNNESSA
P L D 1957 Dacca 305
P L D 1957 Dacca 305
Before Amin Ahmed, Acting C. J. and Rahman, J
NAWAB MEAN CHOWDHURY‑--Appellant
versus
BEGUM SYEDA BADRUNNESSA and others ----Respondents
Appeals from Appellate Orders Nos. 10 and 11 of 1954, against the Orders of S. N. Chakraborty, District Judge, Chittagong, dated the 18th June 1953, in Other Appeals Nos. 120 and 124 of 1952, respectively modifying the Decrees of Meerza Zafar Bukht, Subordinate Judge, 1st Court Chittagong, dated the 24th January 1952, in Other Suit No. 19 of 1949, decided on 15th July 1955.
Civil Procedure Code (v of 1908), O. XLI, r. 23‑Remand order on point other than preliminary point‑Whether appeal-able under O. XLIII, r. 1 (u)‑Civil Procedure Code (V of 1908), Ss. 151 & 115.
The provisions of O. XLI, r. 23, enable the Appellate Court to remand the case only in those cases where the Court of the first instance has disposed of the suit on a preliminary point and that decision is reversed in appeal. Hence an order of remand on a point other than a preliminary point is not appeal-able under O. XLIII, r. 1 (u) of the Civil Procedure Code.
Although in such a case an appeal does not lie yet if the remand order is without jurisdiction, the High Court will set aside the same in the exercise of its revisional jurisdiction under section 115 of the Civil Procedure Code.
Case‑law reviewed.
N. C. Nandi for Appellant.
Ahmad Sobhan for Respondent No. 1 in S. M. A. No. 10 of 1954 and Respondent No. 3 in S. M. A. No. 11 of 1954.
J. B. Nag Das for Respondent No. 2 in S. M. A. No. 10 Of 1954 and Respondent No. 1 (Cross‑Objector) in S. M. A. No. 11 of 1954.
JUDGMENT
AMIN AHMAD, A. C. J.‑----This Appeal by the plaintiff is from a decision of the District Judge of Chittagong in Other Appeals Nos. 120 and 124 of 1952, modifying and remanding a decision of the Subordinate Judge, 1st Court, Chittagong. It arises out of a suit for specific performance of contract in respect of sale of land with structures thereon.
The facts of the case may be briefly stated as follows: The properties in question belonged to one Dalildar Rahman. He died leaving his widow Maqsuda Khatun (defendant No. 3), his two sons, Ejazuddin (defendant No. 1) and Imamuddin (defendant No. 2), and his daughter Badrunnessa (defendant No. 4). After Dalildar Rahman's death, his son Ejazuddin used to manage all the properties on behalf of his mother and his brother and sister, that is, all the other defendants. On the 6th of March 1948, Ejazuddin entered into an agreement for sale of the disputed Property to the plaintiff, on behalf of and with the full knowledge and consent of the other defendants, for Rs. 4,000 and by way of earnest money he also received from the plaintiff Rs. 1,400, and his brother Imamuddin received Rs. 264‑10‑0. The plaintiff was also put in possession of the Disputed property and the title deeds were also made over To the plaintiff. On the 4th of June 1948, Ejazuddin's mother, Maqsuda Khatun (defendant No. 3) and Badrunnessa (defendant No. 4) came to Chittagong to execute the kabala in respect of the property in question, but as stamp was not available, they left for Dacca; and the defendant No. 2 (Imamuddin) assured the plaintiff to obtain a power‑of- attorney from these two ladies, and to get the conveyance executed by them later on. The plaintiff claims specific performance in respect of the entire 16 annas of the disputed property or at least in respect of 7/10th share of the defendants Nos. 1 and 2, and alternatively, he claims refund of Rs. 1,664‑10‑0 that he paid to the defendants Nos. 1 and 2, Maqsuda Khatun, the defendant No. 3, died after the service of summons of the present suit, and the plaintiff does not claim specific performance in respect of the 4/5th share of the defendants Nos. 1 and 2, after the death of the defendant No. 3 Maqsuda Khatuns.
The defendants Nos. 1 and 4 (Ejazuddin and Badrunnessa) contested the suit. The defence of the defendant No. 4 is that she never authorised Ejazuddin or any one to enter into an agreement for sale in respect of the disputed property nor did she have any knowledge of any kind of such an agreement; and that on the other hand she purchased the property herself from the defendants Nos. 1, 2 and 3 in October 1948, without knowing anything about this agreement for sale.
The defence of the defendant No. 1, Ejazuddin, is that he never managed the disputed property on behalf of other defendants; that there was no concluded contract and he agreed to sell the property to the plaintiff provided that he (defendant No. 1) succeeding in inducing them to agree to the sale; that the agreement was fraudulently obtained; that he and his brother Imamuddin actually received only Rs. 600 and they were ready to refund that amount; that there could not be any specific performance of a part of contract in respect of 7/10th share of Ejazuddin and Imamuddin and, as a matter of fact, Badrunnessa had already purchased the premises from the defendants Nos. 1, 2 and 3; and that the possession of the property in question was given to the plaintiff only for their temporary accommodation. The following issues were raised at the trial:
"(1) Was there any contract for sale of land as alleged in the plaint?
(2) Was the alleged contract legal and valid? Was the defendant No. 1 competent to contract for other co‑sharers?
(3) Can the alleged contract be specifically enforced?
(4) Can the plaintiff get a decree for specific performance of contract against defendant No. 4.
(5) Can the plaintiff get his alternative remedy of getting a conveyance against defendants Nos. 1 and 2 alone?
(6) Can the plaintiff get a refund of Rs. 1,664‑10‑0 or his alleged costs of repair amounting to Rs. 1,193‑7‑6 pies or any damage as claimed?
(7) What relief, if any, is the plaintiff entitled to?
The trial Court decreed the suit as follows:
"The suit is decreed with costs on contest against defendants Nos. 1 and 4 and ex parte against defendant No. 2 (defendant No. 3 is dead). The plaintiff must deposit in Court to the credit of defendants Nos. 1, 2 and 4 Rs. 2,353‑6‑0, less cost of this suit awarded by med this decree to the plaintiff within two months from the date of signing of the formal decree by this Court, in default this suit will stand dismissed without costs. If the plaintiff deposits the money as directed in the decree defendants Nos. 1, 2 and 4 shall execute and have registered a sale‑deed in respect of the entire premises specified in the plaint schedule in favour of the plaintiff within three months from the date of signing of the formal decree by this Court, and deliver the sale‑deed to the plaintiff on failure of which the plaintiff will get a sale‑deed from the Court in execution of this decree, and in that event the plaintiff will recover costs of the execution case from defendants Nos. 1, 2 and 4 but cost of stamp for the sale‑deed and the registration costs will be payable by the plaintiff."
Against this decision two separate appeals were preferred by the defendant No. 1 and defendant No. 4 to the District Judge of Chittagong, and the learned Judge disposed of both the appeals by one judgment. The learned District Judge after setting out the facts briefly, formulated the following points for decision:
"(1) Whether there was any concluded contract of sale between the plaintiff and the defendants Nos. 1, 2 and 4, and 3 who is since dead, or did the defendants Nos. 1 and 2 enter into any concluded contract with the plaintiff for the sale of the disputed premises on behalf of them selves and on behalf of the defendants Nos. 3 and 4 and did the defendants Nos. 3 and 4 ratify or accept the contract alleged to have been made by the defendants Nos. 1 and 2 with the plaintiff in this behalf?
"(2) If the plaintiff's claim for specific performance fails as regards the share of the defendants Nos. 3 and 4, whether the plaintiff is entitled to a specific performance as against the defendant Nos. 1 and 2, and if so, for what share?
"(3) In case the claim for specific performance fails, for what amount the plaintiff is entitled to refund? What is the actual amount advanced by the plaintiff towards the consideration money of the alleged transfer?
"(4) Is the defendant No. 4 a bona fide purchaser for value without notice of any contract between the plaintiff and the defendants Nos. 1 and 2."
and the operative order in the judgment of the learned Judge is as follows:
"Ordered that the appeals be allowed in part on contest and that the Judgment and decrees of the learned Sub ordinate Judge be modified as indicated above, and case be sent back to the Court below for a fresh trial as indicated above, and in the light of observations made before. Both the parties have partially succeeded in this Court, and so I do not allow any cost of appeal. The cost of the trial Court will abide the final result. Court‑fees paid are sufficient."
The decree drawn up in Other Appeal No. 120 of 1952 is to the following effect:
"It is ordered that this appeal and Other Appeal No. 124 of 1952 be and the same are allowed in part on contest. The judgment and decrees of the learned Subordinate Judge are modified as indicated, and the cases are sent back to the Court below for a fresh trial as indicated, and in the light of observations made in the judgment. There is no order as to cost in appeal as both the parties have partially succeeded in this Court. The cost of the trial Court will abide the final result."
Against the judgment and decrees in the two appeals governed by one judgment of the District Judge, the plaintiff has preferred the present two appeals, namely, S. M. A. No. 10 of 1954 and S. M. A. No. 11 of 1954; and in S. M. A. No. II of 1954 the defendant‑respondent No. 1 has also filed a cross‑objection.
Mr. Ahmad Sobhan, who appears for the respondent No. 1 (in S. M. A. No. 10 of 1954) and respondent No. 3 (in S. M. A. No. 11 of 1954), has taken a preliminary objection that no appeal lies against an order of remand made by the District Judge. It is contended that according to Civil P. C. the cases where an appeal lies are specifically mentioned in Order XLIII of the Code; that according to Order XLIII, rule 1 (u) of the Code of Civil Procedure an appeal lies against an order under rule 23 of Order XLI remanding a case, but there is nothing in the judgment to show that the order was made under the said provision, and so, it must be taken that the order complained of is an order passed under section 151 of the Code; and that if it is an order under section 151 passed in the exercise of the inherent jurisdiction of the Court, such an order is not appeal-able, and the aggrieved party can move this Court only in its revisional jurisdictions, and this the plaintiff has not done even by filing an alternative application under section 115 of the Civil P. C. In support of his contention the learned Advocate for the respondent has cited a number of cases including the two decisions of this Court, both the decisions being of single Judge, and has pointed out that one learned Judge of this Court has held the view that an appeal lies against an order of remand and other learned Judge has held that no appeal lies against an order of remand, and that this Court can only interfere with the same by exercising its revisional jurisdiction. The learned Advocate has referred to and relied on the following cases: Abdul Rauf alias Lal Mia v. Sherajul Islam (7 D L R 26), Rasul Ali Munshi v. Mst. Anjumannessa Bibi (7DLR112), Ghuzn.7 vi v. The Allahabad Bank Ltd., (I L R 44 Cal. 929 (F B)), Jagathari Saha v. Medini Mohan Burdhan and another (31 C W N 878), Mohendra Nath Chakravarti v. Ramtaran Bandopadhya and another (23 C W N 1049) and Bishwanath Singh v. Abdul Jabbar and others (A I R 1948 All. 19).
In answer to the contention of the learned Advocate for the respondent, Mr. Nandi for the appellant strenuously argues that Order XLIII, rule 1 (u) of the Civil P. C. does speci fically provide for an appeal against an order of remand under Order XLI, rule 23 of the Code; that whether such an order is made rightly or wrongly, correctly or incorrectly, the aggrieved party has a right to appeal under the Statute; and that simply because the learned Judge has not complied with the exact provisions of rule 23, it cannot be said that that by itself takes the case out of Order XLI, rule 23. Further it is urged by the learned Advocate for the appellant that there is nothing to show in the judgment under appeal that the order of remand has been made for the ends of justice or under section 151 of the Civil P. C., and that there is nothing to presume that because the provisions of Order XLI, rule 23 of the Code have not been complied with, the order must be one under section 151 of the Code. When we asked Mr. Nandi whether the order complained of could be taken as an order under O. XLI, r. 25 of the Code of Civil Procedure, inasmuch as the learned District Judge has observed that as certain issue was not framed, he sent back the case to the trial Court for the framing and trial of that issue, the learned Advocate was not prepared to accept that position, and he contended that Order XLI, rule 25 does not speak of a case where an issue has to be tried, and the case has to be disposed of by the Court of the first instance, and it applies only in those cases where the appeal is kept on the file by the lower appellate Court, and a particular issue is referred to the Court of the first instance for trial, if necessary, on additional evidence, and then to return the finding of that issue together with the evidence thereof to the appellate Court. Mr. Nandi expands his argument by saying that it may well happen that certain Court may not be aware or may not refer to the exact provisions of Order XLI, rule 23, of the Code of Civil Procedure in remanding a case, and due to the ignorance of those provisions it may pass an order of remand which is not in conformity with the provisions of Order XLI, rule 23, then in that case the aggrieved party cannot be deprived of his right of appeal against this erroneous decision passed under a misapprehension of the exact provi sion of rule 23 of Order XLI. In support of his contention the learned Advocate has taken us through a large number of cases and, in so doing, he has made his comments, some of which are the same as his arguments to which we have already referred to, and to some we shall presently refer.
The cases are: Abdur Rashid v. Sm. Joydharennessa and others (6 D L R 33), Bairab Chandra Dutt and others v. Kali Kumar Dutt and others (37 C L J 491), Muhammad Ali Fakir v. Karam Ali Talukdar and others (38 C W N 1202), Prasanna Chandra Chattopadhya and others v. Baidya Nath Mistry and others (31 C L J 360), Kayem Biswas v. Bahadur Khan and others (42 C L J 22), Raj Narayan Kundu and others v. Sheikh Murad Ali and others (52 C W N 671), Mani Mohan Mandal v. Ramratan Mandal (I L R 43 Cal. 148), Muhammad Mujibur Rahman v. Sheikh Isab Surati (32 C W N 867) and Pulin Chandra Kayal and another v. Surat Chandra Kayal and others (72 C L J 383).
We may mention that while referring to the cases reported in Mani Mohan Mandal v. Ramratan Mandal (leading judgment of Jenkins, C. J.), and Muhammad Mujibur Rahman v. Sheikh Isab Surati judgment of B. B. Ghose, J.), the learned Advocate also made a point that the lower appellate Court erred in reversing the decision of the trial Court and at the same time remanding it to that Court, and that if the learned Judge was not satisfied with the finding of the trial Court or on the admissibility of any piece of evidence, it was open to the appellate Court to come to its own finding instead of remanding it to the Court of the first instance for the purpose of adducing fresh evidence of proving the inadmissible evidence once again. It is also urged that the issue to which we shall presently refer and which the learned Judge calls a fresh issue, is covered by the issue raised before the trial Court; and that, in any case, whether such an issue was there or not, as the parties proceeded on the footing that there was such an issue and gave evidence thereof there was no necessity of remanding a part of the case to the Court of the first instance maintaining at the same time a part of the finding of the trial Court to the effect that, in any event, the plaintiff will not get more than 7/10th share, and that also he will get provided after remand it is not proved before the Court of the first instance that defendant No. 4 was a bona fide purchaser for value.
Mr. J. P. Nag Das, who appears in support of the cross objection, contends that his client is aggrieved by the order of the lower appellate Court inasmuch as both the Courts below relied on Exh. .6, that is, the receipt purported to have been given by his client defendant No 1, Ejazuddin, which is not admissible in law; and that should we hold the view that the appeal lies, his client has filed the cross‑objection in order to agitate that inasmuch as the finding of the Court below is based on this inadmissible piece of evidence the findings should not be upheld. He, however, mentions that if the order of remand remains and is not set aside by us he has no grievance for, his client will have a further opportunity of agitating this question before the trial Court.
Mr. Nandi after pointing out the findings of the lower appellate Court to which his client takes exception, concluded his argument by inviting us to exercise our revisional juris diction under section 115 of the Code of Civil Procedure in case we happen to hold against him on the preliminary point. It is pointed out by Mr. Nandi that if we are really t satisfied that the order under appeal is without jurisdiction or not in accordance with law whether any appeal lies against it or not, we should treat the Memoranda of these Appeals as applications for revision, and interfere with the order complained of, and give such relief to the plaintiff as he may be entitled to.
We have gone through and examined the cases cited by the learned Advocates for the appellant and the respon dents, and also the two decisions of this Court ‑one by Ibrahim, J., and the other by Akbar J. For sometime the trend of decisions of the Calcutta High Court was that against an order like the present one an appeal lay. In the case of Basumati Devi v. Taritbasini Dasi (31 C L J 354), Richardson and Beachcroft, JJ. in respect of an order of remand observed:
"It may be that regard being had to the terms of rule 23, this is not a case in which it was, strictly speaking, open to the learned Subordinate Judge to make an order under that rule. But whether the order was regularly made or irregularly made, it appears to me to be in form and substance an order under that rule. That being so, the order must be treated as an order under rule 23 from which an appeal lies."
But for the desision of the case of Mohendra Nath Chakravarti v. Ramtaran Bandopadhya, in which Walmsley and Shamsul Huda, JJ. took a contrary view, the ruling of 31 C L J 354 (1918), was followed by the Calcutta High Court in a series of cases up to 1924, namely, Prasanna Chandra Chattopadhya v. Baidya Nath Mistry. Basumati Devi v. Taritbasini Dasi Radha Krishan Saha v. Kamal Kamini Debya and others (35 C L J 345), Bhairab Chandra Dutt v. Kali Kumar Dutt, Kayem Biswas v. Bahadur Khan. But in the two cases of Jagathari Saha v. Mondini Mohan Burdhan and another, (decided on the 30th May 1927), and Banka Behari Deb v. Birendra Nath Dutta (I L R 55 Ca1. 219), (decided on the 8th June 1927;, where some of the cases that we have mentioned above have been referred to, their Lordships Page and Graham, JJ. (the leading judgment being of Page J.) took a different view. In the case reported in 31 C W N 878, it was held that when a case is decided on merits and not on a preliminary point, and the Court of appeal frames an issue and remands the whole case for rehearing and disposal on that issue, the lower appellate Court purports to act under Order XLI, rule 25, and not under Order XLI rule 23 (although it had jurisdic tion under neither), and no appeal lies. Similarly, in Banka Beharf's case. Page, J. referred to the following cases, Mani Mohan Mandal v. Ramratan Mandal, Baikunta lyath Goswami v. Sita Nath Goswami (1 L R 38 Cal. 421), Ghuznavi v. The Q11,ahabad Bank, Limited, Mohendra Nath Chatcravarti v. Ramtaran Bandopadhya, Basumati Devi v. Taritbasini Dasi, Radha Krishna Shaha v. Kamal Kamini Debya, Bhairab Chandra Dutt v. Kali Kumar Dutt, Mohini Mohan Roy v. Ramadas Pararnrhpnsa (28 C W N 271), and Kayem Biswas v. Bahadur Khan. In Banka hair s case, where s the lower appellate Court ordered o remand for rehearing of a case as a whole which had finallly been decided on the merits by the trial Court, their Lordships inter alia held that the condition precedent to exercising the power of remand under Order XLIII, rule 23 of the Code of Civil Procedure not having been fulfilled, the order, of remand was ultra vires and that the order of remand having been made without jurisdiction, and being one from which no appeal lay, the High Court had jurisdiction to treat the Memorandum of Appeal as an application under section 115 of the Code of Civil Procedure and revise the order. As to the jurisdiction of lower appellate Court to rem4nd the case under Order XLI, rule 23, in that case of Danka Behari, Page, J., observed as follows:
". . . . . . . . . . . . Under what principle of law Cart it be held that the order must be deemed to have been made under rule 23 merely because the Court when passing the order purported to be acting or intended to act under rule 23? If it is contended that the order must he so regarded because otherwise an appeal will not lie, and injustice might take place; with all respect that is to legislate and not to administer the law. I invited the learned skil for the appellant to suggest any legal basis to support the view that an order which was not and could not have been made under rule 23 must be treated as having been made under rule 23. No answer was forthcoming, and no satisfactory answer, I think, can be found. In my opinion it never was intended or contemplated that whether km' order of remand was appeal-able or not should dependent not upon whether the conditions laid down by Order, rule 23, had been complied with, but whether the learned Judge purported or did not purport to make the order under rule 23."
From the decisions in the above two cases it appears that their Lordships Page and Graham JJ. were not inclined to accept the view that an appeal lay in a case where it was contended that the Court of appeal purported or intended to act under Order XLI, rule 23 of the Civil P. C. though the provisions of Order XLI, rule 23, were not complied with. Order XLI, rule 23, runs thus:
"Where the Court from whose decree ark 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 issue or issues shall bye 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."
After going through the provisions of this Rule 23 it with be found that apparently these provisions enable the appellate Court to remand the case only in those cases where the Court of the first instance has disposed of the suit on preliminary point and that decision is reversed in appeal; and when a case is remanded by the appellate Court under these circumstances, it is also open to the appellate Court to direct that certain issue should be tried in the case so remanded and then determine the suit after considering the evidence, if any that was recorded during the original trial. On the face of it, according to Order XLI, rule 23, read with section 107 of the Code the appellate Court has got very limited power of remand. It is all very well to say that the appellate Court may not know the provisions of Order XL1, rule 23 of the Civil P. C., and may remand a case without following its provisions and without applying its mind to find out whether those provisions at all applied to a particular appeal, but all Courts must be credited with the minimum knowledge of law, namely, the provisions of the Statute. Whether they applied those provisions rightly or wrongly, is another matter; but it is too much to say that the Court in ignorance of those provi sions of law has exercised a power not given by any provision of the Statute. We have also gone…
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