Calcutta High Court
Jatinga Valley Tea Company Limited vs Chera Tea Company Limited on 19 June, 1885
Equivalent citations: (1885)ILR 12CAL45
JUDGMENT Field, J.
1. We think that the Judge in the Court below was wrong in making the remand order in this case. The Munsif states in his judgment that both parties resolutely refused to have a local enquiry; and it is admitted that the correctness of this statement was not challenged, on appeal to the Deputy Commissioner. The Deputy Commissioner has remaned the case in order that there may be a local investigation. He says: "The whole, question is one of the position and boundaries of the land sued for, and can only be settled by a local investigation." We think that the parties were themselves the, best judges as to what evidence they desired to put before the Court, and that, when the parties "resolutely refused" to have a local investigation; the Judge below was bound to decide the case upon the evidence put before him; and was wrong in remanding the case for a local investigation, which the parties ware not desirous to have.
2. It has been contended before us; that this appeal, ought riot to, be heard," It is said that after the remand order, the Munsif proceeded to make a final decree; and the existence of that, final decree is a bar to the hearing of this, appeal against the order of remand. We are unable to concur in this contention. The law, sub-Section 28 of Section 588 of the Code of Civil, Procedure, expressly gives an appeal against an order under Section 562, remanding a case. That provision is not, in any way, qualified. The Code does not say that there shall be an appeal only if the case has not been finally determined in the Court of First Instance, before that appeal is preferred or cornea on for hearings. We cannot, therefore, import into the Code a provision which does not there exist. The Munsif's jurisdiction to hear the case upon remand depended, upon the remand order. If the remand order were badly made, the decree, and, indeed all the, proceedings taken under that remand order, are null and void.
3. We set aside the remand order, and the decree made after and based upon that remand order, and we direct the Deputy Commissioner to proceed to try the appeal. The Deputy Commissioned will of course determine the appeal upon the evidence on the record at the time when the appeal was preferred. Costs in this Court will abide the result.