Messrs Kumar Brothers & Co. & Ors. Vs. Bhagvati Prasad & Anr.
EmailAppeal: Civil Appeal No. of 1988.
(In SLP 2579/88)
(In SLP 2579/88)
Petitioner: Messrs Kumar Brothers & Co. & Ors.
Respondent: Bhagvati Prasad & Anr.
Apeal: Civil Appeal No. of 1988.
(In SLP 2579/88)
(In SLP 2579/88)
Judges: A.P.SEN & L.M. SHARMA, JJ.
Date of Judgment: May 02, 1988
Head Note:
CODE OF CIVIL PROCEDURE, 1908:
Section 151, O.41 RR.23,23A and 25 – High Court remanding the suit for the retrial – Nothing on record to show that the trial was fundamentally defective – High Court was wrong in directing retrial of the suit in exercise of it inhereent jurisdiction under section 151.
JUDGEMENT:
O R D E R
1. Leave granted. Arguments heard.
2. After hearing learned counsel for the parties, we are driven to the inescapable conclusion that the High Court should not have, in the facts and circumstances of the case, taken recourse to its inherent powers under s.151 of the Code of Civil procedure, 1908 and remanded the suit for retrial with a direction of the Vth Additional Judge, City Civil Court, Hyderabad to require the parties to amend their pleadings and afford them an opportunity to adduce such further evidence on the additional issues indicated by it. There is nothing on record to suggest that the trial of the suit by the learned Additional Judge was fundamentally defective, or any circumstances existed compelling the High Court to direct a retrial in exercise of its inherent jurisdiction under s.151 of the Code. Admittedly, the matter does not fall within the purview of Order XLI, r.23 or 23A of the Code and the order passed by the High Court remanding the suit for retrial was wholly unwarranted. If the HIgh Court were of the view that certain additional issues arose on the pleadings of the parties, it could have framed additional issues and remitted them to the learned Additional Judge under Order XLI, r.25 of the Code requiring him to take further evidence on the issues so framed and submit his findings thereon within the time specified. But the High Court has choosen not to follow that procedure. In the circumstances, we are unable to sustain the order passed by the High Court remanding the suit for retrial in its inherent powers under s. 151 of the Code.
3. Accordingly, the appeal succeeds and is allowed. The impugned order passed by the High Court remanding the suit for retrial is set aside and the High Court is directed to hear the appeal on merits according to law. The costs shall abide the event.
1. Leave granted. Arguments heard.
2. After hearing learned counsel for the parties, we are driven to the inescapable conclusion that the High Court should not have, in the facts and circumstances of the case, taken recourse to its inherent powers under s.151 of the Code of Civil procedure, 1908 and remanded the suit for retrial with a direction of the Vth Additional Judge, City Civil Court, Hyderabad to require the parties to amend their pleadings and afford them an opportunity to adduce such further evidence on the additional issues indicated by it. There is nothing on record to suggest that the trial of the suit by the learned Additional Judge was fundamentally defective, or any circumstances existed compelling the High Court to direct a retrial in exercise of its inherent jurisdiction under s.151 of the Code. Admittedly, the matter does not fall within the purview of Order XLI, r.23 or 23A of the Code and the order passed by the High Court remanding the suit for retrial was wholly unwarranted. If the HIgh Court were of the view that certain additional issues arose on the pleadings of the parties, it could have framed additional issues and remitted them to the learned Additional Judge under Order XLI, r.25 of the Code requiring him to take further evidence on the issues so framed and submit his findings thereon within the time specified. But the High Court has choosen not to follow that procedure. In the circumstances, we are unable to sustain the order passed by the High Court remanding the suit for retrial in its inherent powers under s. 151 of the Code.
3. Accordingly, the appeal succeeds and is allowed. The impugned order passed by the High Court remanding the suit for retrial is set aside and the High Court is directed to hear the appeal on merits according to law. The costs shall abide the event.
