SHAFI-UR REHMAN,J.-Leave to appeal was ranted in this case to ex--amine the question of law whether in a first appeal against an order of remand made under Rule 23-A of Order XLI of the Civil Procedure Code by the District Judge, the High Court could go "into the merits of the case and finally decide it restoring the findings on all the issues as recorded by the trial Court."
2. The plaintiff, Jamadar Ghulam Ghaus, a brother of defendant. Respondent No. 4 Qurban A.I Khan, claimed exclusive occupancy rights in land measuring 73 kanals in village Rajgarh, Chak No. 11 Main Line, Tehsil. Bhalwal District Shahpur. He further claimed that he had given this land to defendants- respondents Nos. 1 and 2 for cultivation on batai but about two years before the institution of the suit these tenants had refuted his title and interest in the property and had also inducted defendant-- respondent No. 3 on the land. They had stopped paying the batai and on that account had become trespassers. He sought their eviction from the land and possession of it. The suit was contested and a joint written state--ment was filed by defendants Nos. 1 and 2 taking up the grounds that the land did not belong to the plaintiff but that in a partition it had fallen to the share of defendant-respondent No. 4 and they had purchased the land from him and were, in fact, the owners of the land and had effected considerable improvements. They admitted that defendant-respondent No. 3 was their tenant. The trial Court framed the following issues on the pleadings of the parties- (1)Whether the plaintiff is the occupancy tenant of the property in question?
(2) Whether defendant No. 4 had become owner of the occupancy tenancy in property in question by private partition for cultivation as alleged in the written statement?
(2)Whether the defendants have effected any improvement upon the suit land, if so, of what value and are the defendants entitled to be reimbursed for the same?
(4) Relief.
The trial Court held that the plaintiff was the occupancy tenant of the property, that defendant No. 4 had not become the owner of the occupancy tenancy in the property, and that the defendants Nos. 1 and 2 had not effected such improvements as could entitle them to reimbursement. On these findings the suit of the plaintiff was decreed. The learned District Judge without examining the findings recorded by the trial Court or reversing anyone of them held that on two material points in controversy no issue at all had been framed The first of these questions, according to the learned District Judge was whether the plaintiff was in exclusive possession of the land in dispute as co-barer" and the second "whether a valid agreement to sell had been entered into by Qurban A.I, defendant No. 4 in favour of defendants Nos. I and 2. While considering the effect of this omission the learned District Judge held- "I am afraid that the suit shall have to be remanded for fresh decision."
He set aside the judgment and decree and remanded "the suit under Order XLI, rule 23-A, C. P. C.
For framing fresh issues in accordance with the pleadings of the parties and giving decision on them after trial". Against this remand order an appeal was filed in the High Court underOrder XLIII, rule 1, Clause (u).
3. The learned Judge in the High Court came to the conclusion that "the issues framed by the trial Court fully contemplated what was for determination on the contentions raised from either side and that no additional issue was called for". The learned Judge thereafter examined the findings of the trial Court on each issue and came to the conclusion that these were correct and sound and based on evidence on. The record. With these findings the learned Judge held that "it is manifest that the orderof the learned District Judge must be set aside in that there was no further issue to be framed and that those framed by the trial Court were adequate and in accordance with the pleadings of the parties in result of which the findings of the trial Court are restored and the appeal is allowed with costs".
4. A Letters Patent Appeal was then filed by the appellants and apart from contesting the findings on merits, a serious argument was raised that while considering the legality and propriety of a remand under Rule 23-A of order XLI, C. P. C., the learned Judges in the High Court could not decide the case on merits and restore the judgment of the trial Court. Instead, after setting aside the remand order of the District Judge the case should have been remanded to the first appellate Court for a decision on merits. The Letters Patent Bench repelled this contention relying on Somasunderam Chatta v. Nachal Acki (AIR 1935 Mad. 707) and Sant Ram and another v. Mst.
Mohan Devi ((1893) 35 P R 56), decided by a D. B. Of the Punjab Chief Court and on the basis of provisions made and the powers conferred by sections 107 and 103 of the C. P. C. Thereafter the merits of the case of the parties were examined and the decision of the trial Court as affirmed by the learned Judge in appeal was upheld.
5. The learned counsel for the appellants contended on the basis of the decision in Jainul Abideen Morakayar and others v. Hobibulla Sahib (AIR 1928 Mid. 430), that in hearing an appeal against a remand order the appellate Court could not go into the merits of the case at all or decide it finally.
In this case, in particular this should not have been done because, according to the learned counsel for the appellant, the appellant had no notice that the merits of the case would also come under examination with a view to decide the case finally and nothing, in fact, was urged on merits by the appellant during that hearing. Such a course as was adopted by the appellate Court had the effect, in fact, of denying the appellant a right of appeal which was otherwise available to him under the law.
6. An examination of the Rules relating to remand as contained in Order XLI, rules 23, 23-A, 24 and 25 alongwith the right of appeal as provided in Order XLIII, rule 11, clause (u) reveals that not all orders of remand are appeal-able. It is only the orders made under rules 23 and 23-A of Order XLI which have been made appealable on the strength of Clause (u) referred to. Rule 23 of Order XL1 deals with a case where the suit has been disposed of upon a preliminary point and the decree is reversed in appeal. In such cases as conform strictly to the requirements of rule 23 there can be no question of a decision on the entire case or on merits of the case as was given by the trial Court in this case. There was no reversal of the findings by the first appellate Court. Rule 23-A encompasses a variety of situations including one where all the material and necessary issues have been framed, duly tried and determined by the trial Court. An appellate Court ma yet consider certain additional issues necessary and may without interfering with the findings on them direct the trial Court to decide the case afresh after trying such additional issues. When such an order of remand comes' up under examination iii appeal and is set aside, the findings already recorded, and left practically undisturbed get attention. In attending to them al the powers of the appellate Court get attracted and depending upon the fact of each case, an appropriate order is passed. As regards the powers of an appellate Court, Clause (a) subsection (1) of section 107, C. P. C. Empower the appellate Court "subject to such conditions and limitations as may be prescribed" "to determine a case finally". Rule 24 of Order XLI, C. P. C. Prescribes as follows- "Where the evidence upon the record is sufficient to enable the appellate Court to pronounce judgment, the appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."
The powers of an appellate Court hearing an appeal against a remand order came up for examination in this Court on a similar objection in the case of Pramatha Nath Chowdhury v. Kamir Mondal (PLD 1965 SC 434), and the following decision was given:- It remains now to examine' one other argument advanced on behalf of the appellant, namely, that in any event the learned Judges should not have decided the case themselves but should have remanded the case to the proper Court for determination of the question as to whether there was a valid tenancy in this case. We are unable to accept this contention. A remand should not be lightly ordered if the evidence on the record is sufficient for the appellate Court to decide the question itself. There can be no bar to the Court doing so. Having examined the reasons given by the learned Judges of the High Court for deciding this question we are unable to say that the evidence was not so sufficient. There was adequate evidence on the record upon which the decision of the learned Judges in the High Court could have been based. We see no reason.
Therefore, to interfere only on this ground."
7. It follows from the words of the law and their further exposition by this Court that power to decide the case finally untrammelled by the grounds taken up in the judgment under appeal is possessed the only limitation on the power being that the evidence on record must be sufficient t enable the appellate Court to pronounce judgment. In this case, issue B had been framed in the presence of the parties. They had led evidence on those issues to their satisfaction. The evidence of both the parties had been fully considered and a decision given by the trial Court. There was, therefore, complete satisfaction of the conditions prescribed for the exercise of power by the appellate Court.
8. The case relied upon by the learned counsel for the appellant is distinguishable on two important points. By reference to section 105 sub--section (2) of Civil Procedure Code in the absence of a rule comparable to rule 23-A of Order XLI, C. P. C. The appellate Courts' powers were limited in that decision in following words- "We think that this provision confines the scope of the appeal to the question of the correctness of the order of remand, which may be impeached either on the ground that the remand itself was illegal as the decision of the first Court was not on a preliminary point or on the ground that the decision of the preliminary point by the appellate Court is erroneous. No other questions can be raised in this appeal whatever ,bearing they may have upon merits of the appellants' case.---
9. In the case governed by rule 23-A, as is this case, there may be no decision on a preliminary point at all. The other equally important consider--ation that weighed in that case has been expressed in the same judgment in the following words:- "On that finding, some further questions have to be tried by the trial Court before the suit can be finally disposed of, namely, whether defendant 2 got the sale-deed from defendant No. 1 in her favour with notice of the plaintiff's right . Of pre-emption and if so, what was the market value of the mortgage property at time of its sale to defendant No. 2. The case was, therefore, rightly remanded to the Court of first instance for disposal after trying the further question involved in it."
10. It appears that in that case the trial was not complete, and there was something yet to be done to complete the record. In other words the Court was clearly of the opinion that the evidence upon the record was not sufficient to enable the appellate Court to pronounce judgment. With these distinguishing features the decision relied upon is of little help to the learned counsel for the appellant.
11. As regards his other objections, viz. That he had no notice that the appeal was to be disposed of on merits or that he did not in fact argue any other issue, we have before us the appellants memo.
Of Letters C Patent Appeal and the judgment of the Appeal Bench of the High Court and find that no such ground was taken. These are not contained in his petition for leave to appeal filed in this Court. In this background he cannot b permitted to take up any such ground.
12. The result is that this appeal fails and is hereby dismissed. There will be no order as to costs.