1980 Supreme(MP) 203

R. K. Vijayvargiya, J.
Premchand v. Hiralal
C. Revn. No. 795 of 1979 (1); Decided on 21-8-1980.

Headnote:(l) Civil P. C, 1908-S. 115 and O.41, R. 21 (a)d`revisional jurisdiction under S, 115-when may be exercised to reverse a remand order-appellate Court having jurisdiction under O. 41, R. 21,. (a)d`remand order cannot be reversed,

       (2) Civil P.C., 1908-S.151 and O. 41, R. 23 (a)-inherent powers to remand a case-whether may be exercised in view of specific provision under O.41, R.23 (a).

       (3) Practice (Civil)--Wrong mention of provision - whether invalidate the order.

       The plaintiffs filed the present suit for possession of one room and for permanent injunction. They also submitted an application for temporary injunction directing the defendant to maintain the status quo. The defendant did not file reply to the application for temporary injunction as well as the written statement though repeated opportunities were giving to him for that purpose. The Trial Court, therefore, after recording the evidence of the plaintiff decreed the plaintiffs suit. The defendant preferred appeal against the decree of the Trial Court. The appellate Court has set aside the decree and remanded the case for trial in accordance with law after giving an opportunity to the defendant to. file his written statement on payment of cost of Rs.100 to the plaintiffs. The plaintiffs have assailed the order of remand in this revision.

       Held: The learned counsel for the applicants contended that a number of opportunities were given to the defendant to file his written statement and he failed to file the same and, therefore, the Trial Court was fully justified in proceeding under Order 8, rule 10of of the Code of Civil Procedure and the appellate Court committed an error in setting aside the decree of the Trial Court and in remanding the suit for fresh trial. He also contended that the Trial Court could not remand the case in exercise of its inherent powers because there is specific provision for remanding the case in the Code of Civil Procedure. It is true that the defendant did not deserve any sympathy because he failed to file his written statement inspite of a number of opportunities having been given to him for that purpose on his request. Still if the appellate Court has come to the conclusion that an opportunity to defend the suit should be given to the defendant and has remanded the suit and has compensated the plaintiffs by award of suitable cost. it cannot be said that the appellate Court committed an illegality or material irregularity in exercise of jurisdiction vested in it by law in any event. this is not a fit case in which the order of remand should be reversed by this Court in exercise of its revisional powers. The appellate-Court had power to remand the case under Order 41, rule 23 (a) of the Code of Civil Procedure and, therefore. a wrong mention of section 151 CPC would not invalidate the order of remand In the circumstances. I am of the opinion that it is not a fit case in which interference is called for in revision.