A preliminary objection has been taken by Mr. Bhattacharjee that the revisional application is not maintainable because the only course open to the petitioner was to prefer an appeal.
2. The learned Advocate appearing on behalf of the petitioner has referred to the cases of S.S Khanna v. F.J Dillon in AIR 1964 SC 497 and Sanatan v. Hakim in AIR 1977 Orissa 194 at page 196. It has been contended that the plaintiff prayed for eviction on various grounds and many issues were framed. The learned Appellate Court reversed the findings only on two points, viz., the alleged requirement of the plaintiff and on the question whether the roof of the house was damaged by affixing the antenna for the T.V The other points have not been reversed. The order of remand has been made by the appellate Court only on those two points. So, there will be no de novo trial. According to the provisions of R. 23A of O. 41 of the Civil P.C there will be a retrial only when there is an order for de novo trial and not when the appellate court gives direction to hear the case only on certain points. It has thus been contended that in the eye of law there will be no retrial or de novo trial and hence only a revision lies and the order in question is not appealable.
3. Rule 23 of O. 41 of the Code does not apply because the case has not disposed of the matter on a preliminary point. R. 23A says that where the court from whose decree an appeal is preferred has disposed of the case otherwise on a preliminary point and the decree is reversed in appeal and retrial is considered necessary, the appellate court shall have the same powers as is mentioned in R. 23. Clause (u) of R. 1 of O. 43 of the Code says that an appeal shall lie from an order under R. 23 or 23A of O. 41 of the Code remanding a case, where an appeal would lie from the decree of the appellate court.
4. The learned appellate court has clearly passed an order for retrial by the learned Munsif.
5. The latter fixed 10 issues out of which the learned appellate court reversed the finding on issue No. 4, which raised the question whether the plaintiff reasonably required the disputed premises for her own use and occupation and on issue No. 5, which says whether the defendant committed any act contrary to the provisions of Cls. (m), (o) and (p) of S. 108 of the T.P Act Since all the findings have not been reversed, one can conclude that the other findings have been affirmed by the learned Appellate Court and the same have become final. Even after the order of remand, those concluded matters cannot be reopened by the trial court. Since there was remand with a direction to retry the suit on those two matters, I am of opinion that the order in question is appealable within the meaning of Clause (u) of R. 1 of O. 43 of the Code and the aforesaid two cases do not apply to the facts of this case. In view of Sec. 115(2) of the Code an application for revision does not lie. The submissions made on behalf of the petitioner cannot be accepted.
6. Now the question arises, what is to be done because a revisional application and not an appeal, has been filed.
7. Reference may be made to the case of Madhu v. Rajaram, decided by B.K Mukherjea and Pal, JJ. in AIR 1943 Cal 177 to show that where a revisional application is found incompetent, as the order is appealable, the applicant may be allowed to convert a revisional application into a memorandum of appeal when requisite court-fees are paid. Hence the petitioner will be given a chance to pay the requisite court-fees for an appeal in this case. If such court-fees are paid within one month from today, it may be registered and placed before the appropriate Bench for admission. If no such payment is made, the revisional application will stand discharged with costs, hearing fee being assessed at 5 gold mohurs.
Order accordingly.
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