The inherent powers of the court can be exercised to remand a case in the interests of justice, even if the situation is not expressly envisaged in the Code.

S. K. RAY, C. J.

( 1 ) THIS revision is by the defendant and arises out of a suit for partition which the plaintiff-opposite party sought to carve out his moiety share in the suit-property allotting the balance half to the petitioner.

( 2 ) THE plaintiff's case was that all the ancestral properties of the parties had been partitioned by metes and bounds excepting the suit-property which is the homestead of the parties. The petitioner in his written statement pleaded that the lands set out in Schedule Ka of the written statement were also the joint family property of the parties, and so liable to partition. Since all the joint family properties had not been included in the partition suit, the suit was liable to be dismissed. Accordingly, one issue was framed as to whether the properties given in Schedule Ka of the written statement had been partitioned amongst the members of the family previously and whether all the joint family properties liable to partition, have been brought into hotchpot in the suit.

( 3 ) THE trial court held that the properties in Schedule B of the plaint as well as those in Schedule Ka of the written statement, are liable to partition, since they are joint family properties and had not been partitioned before. The plaintiff, thereupon, appealed in respect of that portion of the decree under which Schedule ka property of the written statement was directed to be partitioned. The trial court came to the conclusion that Ka Schedule property was the joint family property and was thus liable to partition reiving upon the statement of P. W. 1. the son of the plaintiff. Schedule Ka contained four lots. According to the plaintiff, 'his father purchased lots 1 and 2 and lots 3 and 4 were joint family properties which had been allotted to his share in the prior partition. P. W. 1, son of the plaintiff, however, stated that they became separate in mess only twenty years ago and lots 1 and 2 of Schedule Ka were purchased by his father.

( 4 ) THE lower appellate court thought that the evidence on the point was very inconclusive, the testimony of the father and son being at variance with each other and apart from the presumption of the entry in the C. S. record of rights being in favour of the plaintiff, the oral evidence adduced on behalf of the plaintiff, however, put the matter in doubt.

( 5 ) THE plaintiff-appellant contended before him that the parties had not focussed their attention properly on the issues regarding the joint family character of Ka schedule property and prayed for a remand. The lower appellate court was of opinion, on the evidence on record, that the defence case is not acceptable. Therefore, in the interest of justice. he remanded the case to the trial court directing him to afford further opportunities to the parties to lead evidence on the question as to whether Ka Schedule property is the joint family property liable to partition in the suit.

( 6 ) THE only contention raised here is that the lower appellate court's power of remand being limited to the case envisaged under Rules 23 and 25 of Order 41. Civil P. C. , and the present order of remand being one. not covered by either of these two rules, has been passed without jurisdiction. Reliance in this connection is placed on a decision of the Supreme Court in AIR 1965 SC 364. (Mahendra v. Sushilla ). In this case. Mudholkar J. in a separate judgment said as follows:

"appellate Court's power under Section 107 of the Civil P. C. to remand a case or to frame issues and refer them for trial, or to take additional evidence or require such evidence to be taken is regulated by the provisions of Order 41, Rr. 23 to 25 and 27. Rule 25 circumscribes the powers of the appellate Court to frame an issue and refer the same for trial to the Court below, if it need be by taking additional evidence, and permits it to adopt this course only if (a) the trial Court has omitted to frame an issue (b) try an issue or (c) to determine any question of fact whic