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The Indian Penal Code
the Civil Defence Act, 1968
The Code Of Civil Procedure (Amendment) Act, 2002
S. Veerabadran Chettiar vs E. V. Ramaswami Naicker & Others on 25 August, 1958
Section 64 in The Indian Penal Code

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Andhra High Court
Purapabutchi Rama Rao vs Purapa Vimalakumari on 17 October, 1967
Equivalent citations: AIR 1969 AP 216
Bench: Kondaiah

JUDGMENT

1. This appeal by the plaintiff-appellant is directed against the judgment and decree of the Additional District Judge, Krishna, Machilipatnam, dated October 1, 1964, in A. S. No 47 of 1961, ordering the remand of the suit to the Court of the Subordinate Judge, Gudivada, for fresh disposal according to law, in the light of the observations contained therein.

2. It is necessary to narrate the brief and material facts that led to this appeal. The appellant, who owns 4.02 acres of land and a house, married the defendant, in the year 1957, when he was studying B. A class at Gudivada. He was forced and threatened by his father-in-law, in March 1958, when he was unwell and was studying for his ensuing April examination, either to consummate the marriage or to agree to divorce his wife. On March 3, 1958, Venkataramiah and the defendant father came to him and took him to the office of an Advocate Sri D. S. N. Acharyulu of Masulipatnam and got a registered notice prepared with false recitals to the effect that the plaintiff was impotent even at the time of marriage and continued to be impotent after marriage and he was prepared to have the marriage canceled. The plaintiff was compelled to write a document (Ex. B-1) to the dictation of Venkataramaiah and got it registered on March 3, 1958, which is sought to be canceled in O. S. No. 41 of 1958, Sub-court, Gudivada, on the grounds of fraud, coercion, undue influence and fraudulent misrepresentation. The defendant filed written statement contending inter alia that she married the plaintiff on June 6, 1957, her mother had settled Act 2.2 1\2 cents on her and her father had given a cash gift of Rs. 1000 besides some other customary presents, that the impugned deed was executed voluntarily and out of love and affection and the same is not liable to be canceled.

3. The trial court on a consideration of the evidence on record canceled the gift deed (Ext. B-1) as vitiated by fraud, undue influence, coercion and as such invalid and decreed the suit as prayed for. Aggrieved by the judgment and decree of the trial Court, the defendant preferred A. S. No. 47 of 1961 to the District Court, Krishna. Thinking that the entire case revolves on the voluntary nature or other wise of the notice Ext. B-2 and the circumstances under which Ext. A-1 was issued by the doctor and admitted into evidence, the lower appellate Court thought it fit to remand the case to the trial court to afford on opportunity to the parties to examine Sri. D. S. N. Achari, Advocate, Dr. T. V. S. Chalapathi Rao and Narashima Rao. In the result, the decree and judgment of the trial court was set aside and judgment of the trial court was set aside and the suit remanded for disposal according to law. Hence, this appeal by the plaintiffs.

4. Mr. Rama Sarma, the learned counsel, urged that the order remand is unsustainable, as the prerequisites of the Rule 23 of Order 41, Civil P. C. have not been satisfied in this case and this remand has afforded an opportunity to fill the lacunae in the defendant's evidence.

5. Mr. Bhujanga Rao, the learned counsel for the respondent, contended inter alia that the impugned order of remand is passed under Section 151, Civil P. C. but not under Order 41. Rule 23, Civil P.C. and hence the present appeal is incompetent and in any event the remand order is just and proper and is liable to be affirmed.

6. A number of conflicting decisions have been cited by the counsel in support of their respective stands taken by them. It is necessary, firstly. to deal the preliminary objection relating to the maintainability of the appeal raised by the respondent in this appeal. Sri Bhujanga Rao cited the following decisions of the Madras High Court in Mallaya v. Veerayya, AIR 1927 Mad 335; Venkata Radha krishna Rao v. V. Venkata Rao, 47 Mad LJ 552 = (AIR 1925 Mad 229) and Kakamma v. Chandrasekhara, AIR 1929 Mad 205, in support of his plea.

7. For a proper appreciation of the points that arise for determination , it is useful and necessary to consider the scope and interpretation of Section 151 and Order 41 Rule 23, Civil P. C. applicable to Andhra Pradesh which reads thus: Section 151, Civil P. C.

"151. Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." Prior to the Amendment, Order 41, R. 23.

"O. 41 R. 23.- Where the Court from whose decree an appeal is preferred had 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 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 readmit 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". Subsequent to the Madras amendment n 1930, whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, or where the Appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case, the appellate Court may further direct what issue or 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".

8. The earlier view expressed by the decisions of the Madras High Court referred to above, will have no applications to the facts of the present case, which arise subsequent to the amendment of R. 23, O. 41, Civil P. C. in 1930.

9. The scope and applications of the provisions of Section 151, Civil P. C. have been considered by the Supreme Court in Padam Sen v. State of Uttar Pradesh, , Manohar Lal Chopra v. Hiralal, Arjun Singh v. Mohinder Kumar, and Mahender Manilal v. Sushila Mahendra . In , the Supreme Court observed at P. 219 thus: " The inherent powers of the Courts are in addition to the powers specially conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Sec. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislators."

10. In , Raghubar Dayal J. ruled thus:

"The inherent powers are not in any way controlled by the provisions of the Code as has been specially stated in Sec. 152 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the code or against the intentions of the Legislature. This restriction, for practical purposes, on the exercise of those powers is not because of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justice.

11. In , Rajagopala Ayyangar J speaking on behalf of the Bench ruled this:

"It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates."

12. In , the Supreme Court ruled that:

"Inherent powers can be availed of Ex Debitio Justitiae only in the absence of express provisions in the Code." and further observed that though the appellate court has power under Section 107 Civil P. C. to remand a case or to frame an issue and refer the same for trial to the Court below, if need be by taking additional evidence, the exercise of those powers are regulated by the provisions of Rules 23, 25 and 27 of Order 41, Civil P. C.

13. The same view was also taken by Jackson J in Mallappa Chettiar v. Alagiri Naicker, AIR 1931 Mad 791 and Anantha Krishna Aiyar, J in D. Venkamma v. Goparaju Perraju, AIR 1928 Mad 991.

14. It is next contended by Mr Bhujanga Rao that, as no specific mention of the provisions of Rule 23, Order 41. is being made by appellate Court, it should be construed that the order was passed by that Court under Section 151 Civil P. C. in exercise of the inherent powers but not under Order 41, Rule 23 Civil P. C. At the out set, I may say there is no such presumption but the facts of each case should be taken into consideration to arrive at a correct view, whether the remand was made under S. 151 Civil P. C. remanding the case to the trial Court there was no right of appeal. But if it was passed under Order 41. Rule 23. it is an appealable order. Untrammelled by the decided cases, let me examine the point on firs principles. It is setted law that provisions of Section 151 Civil P. C. cannot override any specific provisions of law, applicable to the facts of a given case.

15. When there are specific provisions under the Civil P. C. which could be referable from the facts of the case, it is just and proper to construe that the orders were passed under the provision. That apart, applying the principles of beneficial constructions, it is just and reasonable to presume unless and until the contrary intention is to be gathered on the facts and in the circumstances, the orders were deemed to have been passed by the Court in the exercise of such provisions of law, against which a valuable right of appeal to the aggrieved litigant is provided under the Code. Hence in the circumstances, the orders of remand passed by the Court below, can rightly be referable to the provisions of Order 41, Rule 23 which are specifically applicable instead of trying to attract the residuary powers under Section 151 Civil P. C I am fortified in this view of mine with the decisions of the High Courts of Allahabad and Pepsu. In Bibi Kulsoomunnisa v Ram Prasad, AIR 1922 All 229, Walsh J observed that: "In my view in the case of an order of remand, it must be presumed, unless the contrary is shown at the time when it is made, to be made under O 41 R. 23. The litigant has to make up his mind whether he has a right of appeal and if so what, and if he finds an order against him of remand, that he objects to , like the order before us and there is nothing to contrary, the only inference that he can draw is that it is made under the statutory provisions contained in O. 41. R. 23". I am unable, with respect to the learned Judges that, where an order or remand has not been passed under order 41, Rule 23 it should be presumed to have been so passed for if the Courts raise such a presumption, they would be legislating by conferring a right of appeal where it does not exist."

16. To summarise:

(1) The inherent powers of the Courts are very wide and residuary in nature and not controlled by any other provisions in the code: but they cannot override the express provisions of the law. (2) The inherent power under Sec. 151 Civil P. C. have to be sparingly exercised and that too, only to meet the ends of justice, in appropriate cases, where there are no specific express provisions in the Code of Civil Procedure to meet such a contingency. (3) The powers of remand under the amended Rule 23 of Order 41 applicable to the Madras and Andhra Pradesh are wide enough to take in not only the cases, where the trial court had decided the cases on the preliminary point but also the case where the trial court had decided, all the issues after considering the entire evidence on record and when the appellate Court in the interests of justice feels that a remand was just and proper. (4) The conditions prescribed for the exercise of the power of remand under Rule 23, Order 41 Civil P. C. are mandatory but not a mere formality. To arrive at a findings on the material on record that the judgment of the trial Court is erroneous and is liable to be reversed or set aside, is a conditions precedent for the appellate Court to clutch at the jurisdiction to pass an order of remand under Order 41, Rule 23 Civil P. C. (5) When the remand order is silent as to the provisions of law under which it was passed, it must be presumed to be referable to the specific provisions of the Civil Procedure Code, that is, Order 41 Rule 23 Civil P. C. unless the contrary intentions is established from the facts of the case. (6) It is for the respondent who raises the preliminary objection that the appeal is incompetent on the assumption that the order was passed under Section 151 Civil P. C. that has to prove that such order was passed only under Section 151 but not under Order 141 Rule 23, Civil P. C. (7) The omission to order refund of the court-fee is neither conclusive nor a relevant and material factor to hold that the order was passed only under Section 151 Civil P. C. but not under order 41 Rule 23. (8) Section 64 of the Andhra Pradesh Court Fees and Suits discretion exercisable fairly reasonably and judiciously in each case by appellate Court while remanding the appeal to direct the refund of the court-fee to the appellant of the full amount paid on the memorandum of appeal. (9) If the order of remand is passed under Section 151 Civil P. C., no appeal but only a civil revision petition under Section 115 Civil P. C. lies against such order. Applying the aforesaid principles and in the circumstances and for the reasons stated above, I overrule the preliminary objection raised by the respondent that the order in question is not an appealable order.

17. Even on merits the contention of Mr. Bhujanga Rao that there are no justifiable grounds for interference by this Court in this appeal to set aside the order of remand passed by the appellate Court is without substance. The trial Court had considered the entire evidence on record and given specific findings on each issue framed by it. The appellate Court before exercising power of remand to the trial court, has got a statutory duty and obligation to follow the mandatory provisions of O 41 Rule 23. The appellate Court may in appropriate cases, remand a case under R. 23 framed issues and refer the same to the trial court under Rule 25 call for findings from trial court receive additional evidence under Rule 27 and determine the case finally the requisite conditions of the respective provisions of the Code are satisfied.

18. Let me now examine what the lower appellate court in this case had done. The lower appellate court, without arriving at a conclusion that the material findings of the trial court, are erroneous, set aside the decree and judgment of the trial court and remanded the suit for disposal according to law, affording an opportunity to adduce the evidence of three persons. The lower court failed to follow the mandatory procedure laid down under Order 41 Rule 23, Civil P. C. The requisite conditions to pass an order of remand have not been satisfied. No evidence on record had been considered nor any findings given to the effect that the judgment of the lower court is erroneous and liable to be set aside.

19. In Appadu v. Poddi Ramu 1955 Andh LT 695 (Civil) Satyanarayana Raju J as his Lordship then was, ruled that;

"An order of remand made without coming to a conclusion that the decision of the trial court is wrong and that it is necessary to set aside or reverse the decisions of the trial court is illegal."

20. The discretion vested in the court under Order 41 Rule 23 is unfettered. It guided by judicial principles and capable of corrections by an appellate Court.

21. That apart, the appellate Court would not exercise the power of remand to given an undue advantage to the aggrieved party to fill in the gaps or lacuna in the evidence on record. This would in effect amount to circumvent the provisions of R. 27 O. 41 and crosscutting the specific provisions of the Civil Procedure Code. In the result, I set aside the order of remand and allow the appeal and remand the case to lower appellate court for disposal in accordance with law and with costs.

22. Appeal allowed.