Allahabad High Court
Sita Ram vs Nauni Dulaiya on 9 February, 1899
Equivalent citations: (1899)ILR 21ALL230
JUDGMENT
Blair and Burkitt, JJ.
1. The suit in which this second appeal has been instituted was transferred under the provisions of Section 25 of the Code of Civil Procedure by the District Judge of Jhansi from the Court of the Subordinate Judge fur trial before himself. After trial the District Judge came to the conclusion that the plaint disclosed no cause of action, and he therefore dismissed the suit. On appeal to the High Court the decision of the Judge was reversed. It was held that the plaint did disclose a cause of action, and the case was remanded to the District Judge under Section 562 of the Code of Civil Procedure to be heard on the merits.
2. The District Judge, however, instead of trying the case himself on the remand, thought fit, for some reason unknown to us, to disregard the orders of this Court, and sent the case for trial to the Subordinate Judge. Subsequently the District Judge heard the case on appeal from the decree of the Subordinate Judge and dismissed the suit.
3. On second appeal to this Court the first plea urged is that the District Judge had no power to refer the case for trial to the Subordinate Judge, and that all the proceedings in the Jhansi Courts after the remand order of this Court were without jurisdiction.
4. We think this plea is sound and must prevail. When a case is remanded under Section 562 of the Code, that Section provides that the remand shall be to the Court against whose order the appeal was made--in this case the Court of the District Judge of Jhansi. It then is the duty of that Court to re-admit the suit under its original number in the register and to proceed to hear it on the merits. There is no power given to the Judge to transfer the case to another Court. His power of transfer under Section 25 had been exhausted when the suit was originally withdrawn from the Court of the Subordinate Judge, so, even if Section 25 were applicable to a case remanded under Section 562, (we think it is not applicable) that Section does not empower the District Judge to re-transfer the case to the subordinate Court from which it had been withdrawn.
5. The plain and unmistakeable duty of the Judge was to have obeyed the law by hearing the case himself as a Court of original jurisdiction. He must now perform that duty, and it is much to be regretted that the illegal procedure adopted by the Judge has entailed heavy costs on the parties. We allow this appeal. We set aside as without jurisdiction all proceedings in the Jhansi Courts in this case subsequent to the remand order of this Court, and we direct the District Judge now to re-admit the suit under its original number and to proceed to determine it on the merits.