Madras High Court
Venganna Aiyar And 10 Ors. vs Ramasami Aiyar on 8 November, 1894
Equivalent citations: (1894)4MLJ263
ORDER Muthusami Aiyar, J.
1. The first issue recorded for decision in this case was whether the plaintiff was the next reversionary heir of Sitaramaiyen deceased. The court of first instance determined the question against the plaintiff, and dismissed the suit without deciding the other issues. On appeal, the District Judge found upon the evidence that the plaintiff was Sitaramaiyen's reversionary heir and reversing the decree of the first court, remanded the case under Section 562 of the Code of Civil Procedure for disposal on the other issues. Hence this appeal from the order of remand under Clause 28 of Section 588 Civil Procedure Code. It is conceded that the order of remand satisfies the requirements of Section 562 both in form and substance. It was held in Ramachandra Joshi v. Haji Kassim I. L. R, 16 M, 207 that it was competent to the lower appellate court to pass an order of remand under Section 562 when the Court of first instance records evidence on all the issues, and at the final hearing dismisses the suit erroneously on some particular point without expressing on the other issues. It is contended however that the judge's finding as to the plaintiff being the reversioner is contrary to the weight of evidence on the record and that this Court is bound to consider whether the lower appellate court's finding is correct. The following cases were cited at the hearing, Badam v. Imritf I. L. R. 3A, 675; Bhau Bala v. Bapaji Bapuji I. L.R. 14 B, 14; Abrahim Khan v. Faizunessa Bibi I. L. R, 17C, 168; Sohan Lal v. Azizunissa Begum I. L. R, 7 A, 136.
2. The question now raised for decision was not decided in any of those cases, the only point decided therein being whether the decision of the lower appellate court on the preliminary point was on the facts found by it, open to any legal objection. I am of opinion that Section 584 defines the powers of the High Court in second appeals and that no reason can be conceived for larger powers being conferred in appeals from what is termed an order in an appeal, and what is in substance an appellate decree on a particular, or preliminary point or issue. Sections 588 and 584 ought to be read together, and on so reading them, I can discover no legal foundation for holding that in appeals from orders of remand made in regular appeals by District Courts this Court is not bound by the findings of fact on which the decision of the lower appellate court rests. Otherwise in appeals preferred from appellate decrees, the High Court would be bound to accept the findings of fact recorded by the district courts, whilst in appeals from remand orders which are substantially second appeals from the decision of the District Judge on appeal on a preliminary or particular point, the High Court would not be bound to accept the findings of fact. This seems to me to be an anomaly.
3. I dismiss this appeal with costs.