Halima Khatun vs Abdul Majid

Varma, J.—In this case the plaintiff is the appellant. She brought a suit before the Second Munsif's Court at Cuttack against the defendant for a rendition of account of a sum of Rs. 1,000 which was taken by the defendant on 13th November 1927, for which he granted a receipt in the following terms:

Received from Begum Halima Khatun through Chaudhury Muhammad Ismail Khan the sum of Rs. 1,000 for purchasing paddy and advancing the same to the raiyats of Chaudhury Saheb.

The defendant's case was that he had submitted his account and entered it in the estate papers of the plaintiff's husband. On these facts several issues were framed and the learned Munsif came to his own findings. On the question whether the plaintiff had a cause of action, he came to the conclusion that the money belonged to the plaintiff and she was perfectly competent to bring the suit inasmuch as no accounts had been rendered to the the plaintiff. On issue No. 6 whether the amount of Rs. 1,000 received by the defendant by the receipt in suit was paid back and entered in the account books of the plaintiff's husband, and if so, was it a valid discharge, the learned Munsif came to the conclusion that even if it were taken that the defendant credited the amount taken with the profits in the accounts of the estate of which there was no proof, that even could not be valid discharge to the plaintiff who was the real owner of the money. On the third issue, is the plaintiff entitled to ask for rendition of account, the learned Munsif came to the conclusion that the plaintiff was so entitled. On appeal the Additional Subordinate Judge by his judgment dated 15th March 1933 came to the conclusion that the case was not properly disposed of by the learned Munsif especially when certain important witnesses whom the defendant wanted to examine, and certain papers which the defendant wanted to produce before the Court, were not examined or produced before the Court. He was not satisfied with the Munsif's views that even if it were taken that the defendant credited the amount taken with the profits in the accounts of the estate, of which there was no proof that even could not be a valid discharge to the plaintiff who is the real owner of the money. The learned Subordinate Judge was of opinion that the business was to be conducted through the plaintiff's husband and from her statement he came to the conclusion that if the accounts were entered by the defendant in the plaintiff's husband's papers, he will not be liable to render account to the plaintiff if he has entered this sum of Rs. 1,000 with its profits in the plaintiff's husband's accounts. After these observations he passed the following order:

The decree passed by the learned Munsif must he set aside, and the suit remanded to him to decide according to law, with reference to the papers of the plaintiff's husband's estate, whether the defendant has entered or not, account of Rs. 1.000 and its profits in those papers, and then decide the suit. He will allow fresh evidence if the parties want it. Costs will abide result.

The learned advocate appearing on behalf of the respondent in this case raises a preliminary objection against this appeal. He says that an appeal could lie against this order of remand only under O. 43, R. 1, Cl. (u), if the learned Munsif had disposed of the case on a preliminary point as contemplated in O. 41 R. 23. Looking at the judgment of the learned Munsif, it is clear that he has dealt with the whole case and came to his findings on the various issues raised in the case, and the judgment as a whole is clearly a decision not only on a preliminary point. Preliminary point has not been defined any where,, but from the various authorities that have been placed before us it is not difficult to get a definition as to what "preliminary point" means, it is not necessarily a point of law upon which, the whole case is disposed of nor is it necessarily a point of fact on which the case is disposed of. The best de function is to be found in a Full Bench; decision of the Madras High Court in Malayath Veetil Raman Nayar v. Krishnan Nambudripad, 1922 Mad 505 = 69 IC 828 = 45 Mad 900 (KB), where Schwabe, C.J., observed as follows:

The question turns on the meaning of the Words "preliminary point" in that rule. In my judgment the only meaning that can be properly'' given to these words in this context is any point the decision of which avoids the necessity for the full hearing of the suit. There are many in stances of such points such as, that a suit is barred by limitation, that the Court has no jurisdiction, e.g. under the Estates Land Act, that evidence tendered was not admissible, that on the plaintiff's evidence there is no case for the defendant to answer, in a libel suit, that there is no proof of publication. In all these cases, if the decision is held to be wrong, the case remains to be decided on what is sometimes referred to as the merits of the case.

Further on referring to a decision of the Allahabad High Court in Ram Narain v. Bhawanidin, (1882) 9 All 29n = 1882 AWN 104 the learned Chief Justice accepted the definition laid down therein by Mahmood, J., that the words are not confined to such legal points only as may be pleaded in bar of suit, but comprehend all such points as may have prevented the Court from disposing of the case on the merits, whether such points are pure questions of law or pure questions of fact.

In dealing with the question as to what a preliminary'' point means, in Rachu Gir v. Raghunath Gir, 1917 Pat 577 = 41 IC 202 = 2 Pat LJ 398 Chapman and Jwala Prasad, JJ, referring to the decision of the Allahabad High Court in Mata Din v. Jamuna Das, (1905) 27 All 691 = 2. ALJ 685 = 1905 AWN 159 concurred in the opinion expressed therein that a suit is disposed of on a preliminary point within the meaning of S. 562 when by reason of the decision, on one or more of the issues recorded in the case there has been no necessity for the consideration of the other issues, and that such a preliminary decision is a decision of preliminary point within the meaning of O. 41, R. 23, whether the decision involves questions of law or questions of fact.

I need not refer to the various other authorities on this point, but accepting the definition as found in these decisions, I am of opinion that the learned Munsif did not dispose of the case on a preliminary point.

Then the question arises whether in view of certain decisions the lower appellate Court has finally disposed of certain points in this case and whether his decision amounts to a decree against which there may be an appeal as contemplated. On that point we have got a decision of our Court in Parmanand Kumar v. Bhom Lohar, 1926 Pat 457 = 97 IC 105 where it was held that an order of remand under S. 151 is appeasable only when it amounts to a decree. Where the order of remand merely sets aside the decree of the trial Court and does not itself decide any of the points raised for determination and does not determine the rights of the parties with regard to any of the matters in controversy in the suit, it cannot amount to a decree and must be treated as an order, and no appeal would lie against it as a decree. The mere fact that the order reverses the decree of the trial Court and deprives the plaintiffs of the valuable rights they had acquired thereunder would not make an order of remand a "decree," unless that order itself determines any of the points arising for determination in regard to the matters in controversy in the suit. Looking at the judgment of the lower appellate Court in the light of these observations, I have no doubt that the order of the lower appellate Court in this case does not amount to a decree. He has not decided any of the points finally, and the order which I have already quoted, to my mind, only directs the Munsif to take into consideration the various pieces of evidence that were left out and decide the case according to law. He has pointedly drawn his attention to the fact that reference should also be made to the papers of the plaintiff's husband's estate to find out whether or not the de fendant has entered the sum of Rupees 1,000 and its profits in those papers, because if not anything else it will at least show the bona fides of the defendant in this matter. We do not know in what manner the account with regard to this sum is kept and it will be for the learned Court which tries this case after this remand to look at the papers to come to his own conclusions, whether or not the defendant has discharged his liability.

Under these circumstances, I am of opinion that no appeal lies to this Court against the order of the learned Subordinate Judge and therefore I would dismiss this appeal with costs.

Saunders, J.

I agree.