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1930 Supreme(Mad) 283
Madras High Court
Jackson
Mallappa Chettiar Alias
Versus
Alagiri Naicker And Ors.
Decided On : 28 November, 1930
The main legal point established in the judgment is the requirement to follow specific provisions in the Civil Procedure Code instead of invoking inherent jurisdiction when the Code contains provisions to meet the necessities of the case.
Headnote:
Remand - Civil Procedure Code - Order 41, Rules 25 and 27
Fact of the Case:
The court considered a revision petition against an order of remand passed by the District Judge, who remanded the case in the exercise of his Court's inherent power without providing a reason for the surprising procedure.
Finding of the Court:
The court found that the District Judge acted with material irregularity and cancelled the order of remand, directing the Trial Court to submit a finding to the appellate Court within six weeks and disposing of the appeal. The court also ruled against the adduction of fresh evidence due to the parties' ample opportunity to produce evidence earlier.
Issues: The issues included the propriety of remanding a case using inherent power when specific provisions in the Civil Procedure Code could meet the necessities of the case, and the consideration of fresh evidence after a long lapse.
Ratio Decidendi: The court emphasized that when the Code contains specific provisions to meet the necessities of the case, such provisions should be followed instead of invoking inherent jurisdiction. The court also highlighted the need to exercise inherent jurisdiction with care, subject to the condition that the matter is not one with which the Legislature has specifically dealt.
Final Decision: The order of remand was cancelled, and the Trial Court was directed to submit a finding to the appellate Court within six weeks and dispose of the appeal. The adduction of fresh evidence was ruled against, and the costs of the Civil Revision Petition were to be costs in the cause.
Jackson, J.
1. This is a revision petition against an order of remand passed by Mr. K. S. Ramaswami Sastri, District Judge of Ramnad, on 18th March, 1929, in A.S. No. 282 of 1926.
2. The learned Judge tabulated three points for decision, and decided them all except that he required a finding from the Lower Court as regards the yellow marked items on the suit map. This of course is provided for in Order 41, Rules 25 and 27. But the learned Judge has remanded the case "in the exercise of his Courts inherent power." No reason has been suggested for this surprising procedure), and the only reason which can be inferred from the record, that the quarter was closing and the Judge wished to add a disposal to his returns, is one which this Court would be loath to believe.
3. The question now is whether when the Code contains specific provisions which would meet the necessities of the case in question, such provisions should not be followed, instead of the inherent jurisdiction being invoked.
4. This point is very fully considered by Anantakrishna Aiyar, J., in Venkmnma v. Goparayu Perraju (1928) M.W.N. 164 and his statement of his opinion and of the authorities upon which it is based is one to which I can add nothing but my entire concurrence. In his Lordships view it is not open to the Court to follow a procedure which is contrary to what the legislature has expressly pointed out to be the proper procedure, as when in Order 41, Rules 27 and 28 the legislature has given a specific direction.
5. But after thus stating his view the learned Judge holds that he is overborne by authority. He particularly refers to Sheikh Muhammad Maracayar v. Rengasami Naidu (1921) 16 L.W. 515. I find there that the Judges confessed to feeling the difficulty, but they deferred to Athappa Chetty v. Ramanatham Chetty (1919) 10 L.W. 359 : 37 M.L.J. 536 and Ghuznavi v. The Allahabad Bank, Ltd. (1917) I.L.R. 44 Cal. 929 (F.B.) In Athappa Chetty v. Ramanatham Chetty (1919) 10 L.W. 359 : 37 M.L.J. 536 it is held that Courts have an inherent power of remand, but "where a power is given expressly, Courts should not exercise their inherent power" For this view Ghuznavi v. The Allahabad Bank, Ltd. (1917) I.L.R. 44 Cal. 929 (F.B.) and Jambulayya v. Rajamma (1912) I.L.R. 36 M. 492 : 24 M.L.J. 512 are cited, Jambulayya v. Rajamma (1912) I.L.R. 36 M. 492 : 24 M.L.J. 512 is only authority for what is now generally accepted, that when there has been no regular hearing of the matter the appellate Court by its inherent power may remand. Ghusnavi v. The Allahabad Bank, Ltd. (1917) I.L.R. 44 Cal. 929 (F.B.) is direct authority for the rule that the inherent power must not be exercised when there is a specific provision in the Code, see page 936. The question propounded in this judgment follows the language of that passage.
6. Therefore it will be seen that Athappa Chetty v. Ramanatham Chetty (1919) 10 L.W. 359 : 37 M.L.J. 536 which the Judges in Sheikh Muhammad Mararayar v. Rengasami Naidu (1921) 16 L.W. 515 thought was authority for permitting the Court to remand when there was a specific provision in Order 41, Rule 27, is authority for precisely the contrary view. The mistake has crept in by careless headnoting. The Judges in Aathappa Chetty v. Ramanatham Chetty (1919) 10 L.W. 359 : 37 M.L.J. 536 said: "Where a power is given expressly, Courts should not exercise their inherent power which ought to be very cautiously indented upon." The headnote changes this to, "where express powers are also given, the Courts should be very cautious in resorting to their inherent powers" (10 L.W. 359). And so "should not" has become "should cautiously." And then when one goes behind Athappa Chetty v. Ramanatham Chetty (1919) 10 L.W. 359 : 37 M.L.J. 536 to what is undoubtedly the leading case in this matter, the Full Bench Calcutta decision, the headnote is both correct and clear. "Inherent jurisdiction must be exercised with care, subject ... to the condition that the matter is not one wit
