AI Structured Summary
Not yet generated for this judgment
Judgment
Subramania Ayyar, J.—As laid down in Ramachandra Joishi v. Hazi Kassim ILR 16 Mad. 207 the condition necessary to a remand u/s 562
as the section now stands is the omission to determine the merits. This condition did not exist in the present case as the District Munsif had
disposed of the case on the merits. The order of remand passed by the Subordinate Judge must, therefore, be held to be illegal. The case to which
I was referred on behalf of the respondent is distinguishable from the present case, inasmuch as there the order of remand was passed by the High
Court, which could not deal with the merits u/s 565, the provisions whereof have to be read with those of Sections 562 and 564. And these
sections are u/s 587 applicable to second appeals only as far as may be. There is thus in the matter in question no analogy between the position of
the High Court hearing a second appeal and that of a Court hearing the first appeal Ganesh Bhikaji Juvekar v. Bhikaji Krishna Juvekar ILR 10
Bom. 398. The next contention on behalf of the respondents was that, as the Subordinate Judge found it necessary to direct that certain persons
who had not been impleaded in the Court of First Instance be joined as parties to the suit, the proper thing to do was to remand the case. There is,
however, nothing in Section 562 to warrant this contention. In the circumstances of the case, the proper course for the Subordinate Judge was to
join the person whom he found necessary as parties to the suit, to alter or amend the issues already framed, or frame fresh issues so as to raise all
questions properly arising in the suit as it stands after the addition of the said persons as parties, and refer them for trial to the District Munsif u/s
566 see the observations of the Judges in Ganesh Bhikaji Juvekar v. Bhikaji Krishna Juvekar ILR 10 Bom. 398.
The order of the Subordinate Judge should, therefore, be set aside. The appeal should be restored to the file and proceeded with according to
law.
The costs of this appeal will be costs in the cause.