to the lower Court to be again decided there after such local enquiry. Held, that he had no authority upon such a ground to remand the case for re-decision, there being no suggestion that the lower Court had erroneously decided a preliminary point excluding evidence, and the refer ence not being of an issue framed by the Appellate Court. Nundoomar Banar

jee v. Burry, Marsh., 121. A suit by a ryot was remanded with a view to the asessment of mesne profits on one principle (that laid down in rol. 13, S. W. R. 37.) The first Court found that the plain-, tiff had himself cultivated the lands before leasing them out to an Indigo factory, and assessed the mesne profits accordingly, i. e., at the lowest rate deposed to by the plaintiff's witnesses; the District Judge reversed the decision on the ground of a later ruling (that in S. W. R., vol. 14, 294, 295.) The High Court held, that this was erroneous and pointed out that the Judge ought to have followed the course indicated by the remand. In the same case, it was held, that the special respondent, ought, if dissatisfied with the order of remand, to have applied for a review, and not having done so, he was not entitled to ask the Court to go behind that order and consider whether it was wrong with reference to S. W. R, XIV., 294-295.

(2) When a case is remanded by an Appellate Court for re-trial under sec. 158, the Court of First Instance has not the authority to decide the case upon documents admitted subsequent to the completion of the record, nor has the lower Appellate Court to decide thereupon. Padma Lochan v. Sirdar Khan, B. I. R., III., app, 91. The terms of sec. 158 do not prevent an Appellate Court, on good and sufficient cause shown from remanding a case disposed of there under, in order that jus tice may be done between the parties. Lochmi Mundle v. Wuzeer Paramanick, 8. W. R., vol. 13, 164.

In a case remanded to the lower Appellate Court for trial, by the Court of First Instance, of the issue of limitation, which the appellant had not been allowed the opportunity of meeting, it was ruled that, upon the decision of that issue, it would be open to the parties to appeal upon the whole case, notwithstanding the appeal already had. Rujoo Nundun Parsad Sing v. Chutorsal Sing and another, ib., X., 335.

A suit was instituted on the 19th of February, the 28th fixed for trial, the issues recorded, and defendant's written statement put in on the 28th, and the case decided the next day without a fair opportunity being given to the plaintiff to know the line of defence he had to

meet, a Judge was justified in remanding the case for retrial. Shib Pershad Pattuck v. Nubo Kishen Mookerjee, S. W. R., XVII, 446.

The Civil Judge dismissed an appeal on the ground that the appellant fraudulently presented a stamp insufficient to cover the stamp duty properly payable by him on appeal, although the appellant offered to supply additional stamps to make up the proper amount. On special appeal, the proper stamp duty having been paid, the High Court held, that the course taken by the Civil Judge amounted to such a substantial error in the investigation of the case as called for the interference of the High Court, and remanded the case for investigation on the merits. Ambalu Ramaswamy Jyengor v. Muhumdulli avutam, Mad. Rep. V., 330. If a lower Appellate Court finds a suit to have been undervalued, when its proper value would have placed it beyond the jurisdiction of the Court of First Instance, where it was instituted, it should dismiss the case, and not remand it with a view to the deficient stamp duty being made up. Augopura Chaudhry v. Meah Zibee and others, S. W. R., X., 204.

(a) A subordinate Judge in appeal, having framed an issue remanded the case under

sec., 562 Code of Civil Procedure, to the first Court for trial thereof; but instead of directing that the finding should be returned to his own Court, he directed the Munsiff to give plaintiff a decree in accordance with the finding at which he might arrive. The Munsiff having decided the case accordingly, it went up on appeal before the Additional Judge. The proper course for the Additional Judge was simply to confine him to considering whether the decision of the Court below on the issue directed, was correct or not. He had no power to go beyond the order of the subordinate Judge on the previous occasion. Bodun Buroah v. Abdool Gunny, ib., vol. 19, 281.

(y) Evidence may properly be received even from a defendant who had appeared, and a fortiori from a defendant who had not appeared. Koonj Behary Awustee v. Tarinee Kant Lahoree S. W. R., vol. 8, 285. When on a case coming on for hearing before a Court, to which it has been remanded, the Judge observed that the evidence of witnesses would be unnecessary, the declaration was held to have sufficiently justified, the plaintiffs in making no further application for a summons on the witnesses. Ram Jewun Singh v. Radha Pershaud Singh, S, W., R., vol. 16, 109.

If the Judge instead of observing the provisions of this section, goes into the me

rits of the case and give judgment against the appellant, the appeal must still be considered as dismissed for default, application for re-admission cannot be treated as for review, but must be entertained under sec. 553. Mohesh Chunder Bose v. Thakur Das Gusain, ib., XX., 426. Where the High Court has been misled into making an order of remand upon an issue other than that on which the case at the time ought to have been made to depend as between the parties, and the lower Appellate Court on remand came to a finding of fact which correctly disposed of the case, it was held that, though the latter did not deal properly with the evidence on the record with reference to the precise issue sent down to it, its default ought not to govern the final result between plaintiff and defendant. Mahomed less in v. Ka'e churn Bannerjee, S. W. R., XIII., C. R., 91.

When a Deputy Collector, in trying a claim

under sec. 77, Act X. of 1859, in a suit for rent below Rs 100, goes beyond the scope of the law, and instead of merely deciding who is in the bona fide receipt of the rent, goes also into questions of title, and decides the right to receive rent as between the plaintiff and intervenor, the appeal lies to the Judge, and not to the Collector. In such a case, the Judge is bound to determine the case finally, if the evidence on record is sufficient, and not to remand it to the Deputy Collector for trial of the right issue. Punchanun Koonwar v. Lucklee Prea Debia, S. W. R., III., Act X., 154.

It is incumbent on a Judge in appeal to look at the plaintiff's documents when they have been accepted by, and form the basis of the decree of the Court below. He should not reject them, merely because they had not been filed with the plaint. Mohabeer Doss v. Lalla Roy, W. R., I.,

12.

The orders sent down should be implicitly followed, and only those points taken up which are ordered by the Appellate Court.

In a case which was remanded, to be tried on its merits, the remanding Judges were of opinion that it was not barred; the Additional Judge of the Zila Court adhered to his former opinion, that plaintiff's claim was barred by limitation, but found, as a fact, that she had been a party to a solehanamah and other acts by which she was stopped from her present claim. He was held wrong in having entered again into the question of limitation; but his finding of fact could not be interfered with in special appeal. Mussamat Judoobunsee Koer v Mussamat Asmun Koer, S. W. R. XIV., 370.

When the Court of First Instance did not give very satisfactory ground for its conclusion upon a question of fact upon which the case almost entirely turned, and the lower Appellate Court pronounced the first Court's reasons to be good without going into the merits or recording its view of the evidence, the High Court in special appeal, reversed the lower Appellate Court's decision, and remanded the case for a re-hearing, but, for the purpose of the re-hearing, directed the removal of the case to the High Court as a regular appeal. Kristo Govind Kur v. Ganga Parshad Surma. S. W. R., XXVIII., 226.

A plaintiff's omission to appeal against an interlocutory order of the Sudder Court, remanding his suit for re-trial on the production of the mortgage accounts does not preclude him from insisting before the Frivy Council that the remand for the production of the accounts was erroneous and that the cause should have been decided in his favour, notwithstanding the non-production of the accounts. A. F. Forbes v. Ameeroon issa Begam, ib., V., 47.

A respondent must be held to the grounds

on which he rested his case when the appeal was before the Court prior to the case being remanded, to enable him to prove a particular allegation. Radhakiskore Bose v. Maharajah Mahatab Chand Bahadur, ib., III., Mis., 5.

When a Commission, to examine a witness on behalf of defendant, had been returned unexecuted, and the defendant's petition to have it sent a second time was refused both by the first Court and the lower Appellate Court, the High Court in special appeal remanded the case for the re-is-ue of the Commission, holding that the lower Appellate Court's refusal had been pased on insufficient ground. Jhotee Singh v. Gopal Singh, ib. XXIII., 447.

In a suit for possession of wasilat, the first Court, setting aside the report of the amín, decreed the claim and awarded the amount of mesne profits upon the evidence of witnesses. The Special Appellate Court remanded the case, and directed the deputation of another amin : the decree-holder not having paid in the amin's fees, the case was returned to the lower Appellate Court which dismissed the suit.

Held, that it was not necessary to depute another amín, and, that the lower Appellate Court, ought to have tried the question as to wasilat due upon the material on the record. Gowhur Ali Khan v Jay Mugul Singh, ib., XX., 164.

as

No objection was taken in the grounds of (regular) appeal to the issues framed in the Court of First Instance, nor was there any such contention in those grounds as that the High Court ought to direct the subordinate Court to raise the proper issues. The Court refused to remand the case with a view to other issues being raised and tried, as it thought it would not be justified to travel out of the record and make a case for the defendants which they did not make in their pleadings in the Court below, and which was not in issue in that Court. Jowadunnissa atudai Lall v. Jhaman Lall Misser, . W. R., XXIII., 158. Where the Court of First Instance decides both on the general merits and the plea of limitation, and the Judge of the Appellate Court considers that the evidence upon the record is not sufficient to allow of a satisfactory judgment, and that he is in a position legally to order further evidence to be taken, he ought to proceed in the manner provided by these sections of the Code of Civil Procedure, he has no right to set aside the first Court's decree, and remand the case for re-trial. Gooroo Pershad Dutt v. Sreenauth Bannerjee, S. W. R., XV., C. R., 314. A mistake made by a lower Court in admitting or rejecting documents, as evidence is not sufficient to warrant a case being sent back for a new trial, unless the mistake has really or materially affected the decision upon the merits. Messrs. R. Watson &Co. v Gopee Soondurree Dossee, S. W R., XXIV., 392.

A complete disregard of evidence which, although not conclusive andan estoppel, is of such a nature that a judgment in opposition of it cannot be allowed to stand, amounts to an error of law. Heora Lall Ghose v. Kalee Doss Mookerjee, S. W. R., XXIII. 65. () In a remanded case a fresh vakalutnamah is not necessary. S. M. Nobin Monce Dassi v. Joy Gopal Gossur, ib., I.,

276.

A remand order is final as far as it goes and cannot be set aside fical by a successor. Lubut Panday v. Byjrath Singh ib., vol. 14 p. 285.

The effect of an order of remand for a new trial is entirely to nullify the first decision and to re-open the whole case. Tarince Kant Lahoree v. Koonjo Beharee Avastee, W. R. XII,, 112. *(a)Omission to frame issues is generally held to be a fatal error, (see, however, the next ruling which follows). In the case Maharajah K. B., Nitrasur Sing v. Babu Nund Lal Sing, M. S. A., VIII., 199, the High Court held, such objection to be fatal, and ordered that the decree appealed from, should be set aside, and the case

remanded to the lower Court, with directions to lay down issues, and call upon the parties for proof, and then try the case de novo. The plaintiff upon the retrial, after the issues had been laid down, took no advantage of the opportunity thus afforded him of giving fresh evidence but, by petition, prayed for judgment on the evidence, oral and documentary, already given. The Privy Council considered that, if this manner of trial were irregular, it was not for the plaintiff to complain of an irregularity committed at his instance, or with his consent.

The Privy Council, in the case of Musst, Mitna v. Syud Fuzl Rub, would seem to point out that an omission to frame issues is always a serious error, but not always fatal to a case. They observe that, whilst desirous to avoid urging anything which might have the effect of introducing any laxity in the Courts of justice in regard to the observance of those provisions of the Civil Procedure Code which direct the settlement of issues, provision, which they regard as most important, they do not find in the Code anything which says positively that the omission to settle those issues is fatal to a trial. The omission to frame issues had been brought to the notice of the Appellate Court and it had expressed its regret that the Lower Court had omitted to settle issues, still the Appellate Court conceived that it was not under any positive obligation to remand the case. Seeing that the parties had gone to trial knowing what the real question between them was, and that the evidence had been taken, they were of opinion that conclusions had been cor rectly drawn from the evidence, and had thought it within their competence to affirm the decision of the Court of First Instance without sending the case back for a re-trial. The Judicial Committee of the Privy Council were not prepared to say that the Appellate Court had not power to do so, and, therefore, fully concurring in the observations made by the Appellate Court, that it was the duty of the Judge to settle the issues; and that it was much to be regretted that he had omitted to settle those issues, still, thought that under all the circumstances of the case, substantial justice having been done, there had not been that fatal mistrial of the cause which vitiates all proceedings, and renders a new trial necessary.

In coming to this conclusion regard was had to the circumstance that no objection was taken in the Court below to dealing with the case without the settlement of issues. Had the objection been