1. This is a defendant's appeal under O. 43, R. 1 cl. (u) of the CPC against an appellate order of the District Judge, Jodhpur dated 30th September, 1958 reversing the decree of the Civil Judge, Jodhpur dismissing the plaintiff-appellants' suit on a finding on one issue, and remanding the case for fresh decision after determining various other points arising in the suit. The material facts necessary for the decision of this appeal may be briefly given as follows: On 5th August, 1949 the defendant-appellant No. 1 Abdul Gani borrowed Rs. 2500/- from the plaintiff-respondents Devilal and Radhe Shyam and created a usufructuary mortgage of a house and transferred the possession of the house to the plaintiff-respondents. On the same day he took on lease the house from them and executed a rent-note in their favour on his own behalf and on behalf of his minor son Mohmad Saffi.

2. Alleging that the defendant-appellant did not pay any rent after the execution of the rent-cote the plaintiff-respondents brought a suit for ejectment of the defendant-appellant from the house and for the recovery of Rs. 225/- as arrears of rent on 17-5-50 in the Court of Munsif, Jodhpur. Afterwards some minor amendments were made in the plaint and then it was on 18-5-1950 that the defendants filed a written statement. A number of pleas were raised by the defendants but I am not concerned with them in this appeal.

3. On 18th December 1950 the case was adjourned to 13th January, 1951 for plaintiffs written statement. On 13th January, 1951 the defendants submitted an application marked Ex. D.W 2 stating that at the intervention of some people the parties had compromised the claim under the mortgage itself and that the defendant-appellants paid Rs. 2600/- in full satisfaction of the claim under the mortgage. He produced a copy of the receipt purporting to have been executed by the plaintiff-respondents.

4. It was further mentioned that the plaintiff had promised to return the mortgage-deed and the title-deeds and to withdraw the suit for ejectment but he is not doing so. He, therefore, prayed that in view of this settlement resulting in the discharge of the mortgage itself the suit of the plaintiffs should be dismissed. The plaintiff-respondents opposed this application and denied having executed any receipt. An issue was framed

“whether the defendant paid Rs. 2600/- to the plaintiff in full payment of the claim under the mortgage vide receipt Ex. D.1 in pursuance of a compromise and, therefore, his suit is not competent.”

5. The trial judge after recording the evidence of the parties decided this issue in favour of the defendant-appellants and dismissed the plaintiff-respondents' suit. He held that the execution of the receipt Ex. D. 1 by the plaintiff-respondent and the payment of Rs. 2600/- by the defendant-appellant to the plaintiff-respondent had been proved. He accordingly dismissed the plaintiff's suit. The plaintiff-respondents filed an appeal in the District Court, Jodhpur.

6. The District Judge reversed the finding of the trial judge on the only issue decided by the trial judge and remanded the case for fresh decision after determining the other points arising in the suit. It was held by him that the defendants had failed to prove the payment of Rs. 2600/- to the plaintiffs. The defendant-appellants have consequently come to this Court in appeal.

7. At the outset Shri Badri Narain Chanda appearing on behalf of the plaintiff-respondents raised a preliminary objection that in the circumstances of the case the appeal is not competent. The appeal has been preferred under O. 43, R. 1 cl. (u) on the footing that the order of remand was passed by the lower court under O. 41, R. 23 of the CPC contending that the words “preliminary point” should be confined to the pleas like limitation, res judicata and jurisdiction which are strictly independent of the merits of the case — the learned Advocate argued that the trial court having framed and decided a issue obviously relating to the merits of the case it should not be taken that the trial court decided any preliminary issue nor could the appellate court be said to have reversed the finding of the trial court on a preliminary issue.

8. On this basis he contended that the present case does not fall within O. 41 R. 23 and must be taken to be a case where the lower appellate court remanded the suit under its inherent jurisdiction and in that case according to well settled law an appeal is not maintainable. The contention of Shri Chanda for placing a restricted meaning on the words “preliminary point” find support in some earlier Madras, Punjab and Calcutta cases.

9. In Athappa Chetty v. Ramanathan Chetty, AIR 1920 Mad 898 (2), the learned Judges expressing their agreement with the definition of the words “preliminary point” given by Muthuswami Aiyar, J., in an earlier case observed that, “Prima facie the expression connotes a determination not affecting the merits of the case”. In Kuppelan v. Kunjuvalli, 9 Ind Cas 790 (Mad), it was observed that the question on which the District Munsif disposed of the case involving as it does an important issue relating to the merits of the plaintiff's case was not a preliminary question.

10. The decision in Athappa Chetty's case, AIR 1920 Mad 898 (2), is merely based upon the decision in Ramachendra Joishi v. Hazi Kassim, ILR 16 Mad 207. The examination of this authority, however, does not justify the adoption of a restricted meaning of the words “preliminary point”. In the first instance it was a case under the Act No. VII of 1888 when there was some scope for an argument for a restricted meaning of the term “preliminary point” on account of the difference in phraseology. Secondly, the following observations in the judgment clearly militate against the adoption of a restricted meaning:

“In this view the words “preliminary point” must be taken after the amendment to refer to some point either collateral to the merit which precluded their determination altogether or some particular question which though relating to the merits, precluded their general determination. The intention which the amendment suggests and which is confirmed by the report of the Select Committee was not unduly to limit the discretion by the appellate court as was found to have done by section 562 as it originally stood”.

11. In these circumstances no much help can be derived by the respondents' counsel from this authority.

12. Further in Malayath Veetil Raman Nayar v. Krishnan Nambudripad, AIR 1922 Mad 505, the Full Bench of the Madras High Court while considering the competence of the appellate court to order a remand in the exercise of its inherent powers under Sec. 151 refused to answer the question and having adopted a liberal interpretation of the words “preliminary point” held that the remand order easily fell under O. 41, R. 23.

13. The Chief Justice Schwabe, observed that the only meaning that can be properly given to these words “preliminary point” in this context is any point the decision of which avoids the necessity of the full hearing of the suit. He further observed that the earlier case 9 Ind Cas 790 (Mad), was an instance of decision on a preliminary point. In the face of this Full Bench authority the earlier cases are of doubtful authority.

14. I now proceed to examine the Calcutta cases. In Nirmala Sundari Debi… v. Golap Bashini Debi…., AIR 1934 Cal 49, Justice Mitter purporting, to quote Oldfield J.'s observation in AIR 1922 Mad 505, observed that a preliminary point must be one which must be independent of the merits. A perusal of the judgment of Oldfield J. in Raman Nayar's case, AIR 1922 Mad 505, does not support Justice Mitter's observations. I may usefully quote the following part of his judgment:

“But, whatever the implication of this wording, there is nothing corresponding with it in the present Code or the order under it, and, there is, therefore, no reason for treating only those points as “preliminary”, which, like pleas of res judicata or jurisdiction, are strictly independent of the merits.”

15. In these circumstances I find it difficult to agree with the proposition of law laid down in this case. Justice Mitter has referred to an earlier Calcutta case, Banka Behari Deb v. Birendra Nath Dutta, AIR 1927 Cal 850. The facts of the latter case are quite peculiar. In this case the Munsif did not decide the suit only on a preliminary point but on the merits. The lower appellate court did not itself finally determine all or any of the matters in controversy between the parties and merely framed an additional issue and referred it to the trial court for the finding. The principle of that case, therefore, cannot be invoked to support the general observations made by Justice Mitter. I, therefore, find it difficult to adopt the view propounded by Justice Mitter.

16. I need not refer to the earlier Punjab cases because in Abdul Gafar Khan v. Muhammad Zia-ud-din, 2 Pun Re 1908, p. 10, a Full Bench of the Court adopted a liberal interpretation of the words “preliminary point”. On the other hand there is a mass of case law in support of a wider meaning for the words “preliminary point”. In Ram Narain v. Bhawanidin, ILR 9 All 29, the learned Judge Mahmood, J., laid down that the words “preliminary point” are not confined to such legal points only as may be pleaded in Bar of suit I but comprehend all such points as may have prevented the court disposing the case on the merits, I whether such points are pure questions of law or pure questions of fact. These observations were cited with approval in the Full Bench Madras case cited earlier and this has further been followed in Mr. Jit Kaur v. Kesarsingh, AIR 1951 Pepsu 130, and various other cases.

17. Apart from the weight of the authorities, the interpretation of the words “preliminary point”, literally also militates against Shri Chanda's contention. Ordinarily when there are two or more points to be decided and it is necessary for the decision of the other point or points that the first point must be decided, the decision of the first point is preliminary to the decision of the other points. It is not clear how the question whether a point is connected with the merits of the case only or a point of pure law can affect the question whether it is a preliminary point.

18. There is no obvious reason or justification to discard the ordinary and natural meaning and to limit it by reference to the merits of the case. There are no compelling considerations based either on the scheme of the statute or any necessity of reconciling with the other parts of the statute for adopting this course. It may be suggested that the adoption of a wider meaning may result in many cases of remand and granting of retrials. In the first instance this by itself is not reason for modifying a natural meaning.

19. Secondly, it may also be pointed out that the powers under O. 41 R. 23 are discretionary and it is open to the appellate court in appropriate cases not to proceed under O. 41 R. 23 but to take action under O. 41 R. 24 or 25. In this connection I am tempted to point out that the Allahabad, and Madras High Courts had amended O. 41 R. 23 presumably by way of abundant caution for enabling the appellate court to have wider powers of remand under O. 41 R. 23. Therefore, on a consideration of a mere policy of restricting powers of remand under O. 41 R. 23 a restriction of the natural meaning is not justified.

20. In passing I may also observe that the expression “decision on merits” cannot be said to have acquired a settled meaning. It is rather an elastic expression. Some times the expression is used in contradistinction with decisions on legal and technical points and some times in contradistinction with one by way of penalty. An interpretation of the words “preliminary point” by reference to an expression which itself is elastic cannot be said to be satisfactory and in strict accordance with the accepted notions of the administration of justice and jurisprudence requiring certainty and predictability.

21. I have, therefore, no hesitation in holding that the words “preliminary point” should not be narrowly construed so as to be confined to pleas like limitation and res judicata but should be given a liberal meaning so as to include any point connected or not connected with the merits of the case, a decision of which in some particular manner results in the disposal of the suit without the necessity of deciding other points actually arising in the case which or at any rate some of which must necessarily be decided for the disposal of the case in the event of a different decision on preliminary point not resulting in the disposal of the suit. In this view of the matter I do not find any force in the preliminary objection which is consequently overruled.

22. Another question of law on which the learned counsel raised a controversy related to the scope and nature of hearing in an appeal under O. 43 R. 1 cl. (u). It was contended by Shri Chanda that it is necessarily a second appeal and, therefore, can be competent only on the ground mentioned in Sec. 100. The appellant it was further argued, cannot agitate questions of fact and the findings of fact of the lower court even though found to be erroneous are binding in such an appeal. He has cited two Madras cases, Seshammal v. Kuppanaiyyangar, AIR 1926 Mad 475 and (Thayyil Puthia Purayil) Ambukutti Vaidier…Plaintiff v. Kannoth Koottambath Kelan…Defendant ., AIR 1933 Mad 460. There are other cases which support his contention.

23. Shri Chandmal, learned counsel for the defendant-appellants cited no contrary law. He, however, argued that Sec. 100 is confined to second appeals against decrees and, therefore, cannot be invoked in an appeal against an order. It is of course true that Section 100 in terms applies only to appeals against decrees, but the contention of Shri Chandmal cannot be accepted on account of language of O. 43 R. 1 clause (u). It reads as follows:

“an order under R. 23 of O. XLI remanding a case, where an appeal would lie from the decree of the Appellate Court.”

24. It is obvious from it that an appeal will lie from—an order of remand only in these cases in which, an appeal would lie against the decree if the appellate court instead of making an order of remand-had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were itself to be treated as a decree and not a mere order.

25. In these circumstances it is quite safe to adopt that an appeal under O. 43 R. 1 clause (u) should be heard only on the grounds enumerated in section 100. On other considerations also the same conclusion is inescapable. If the preliminary point raises a question of fact it stands certainly adjudicated upon by the trial court and the first appellate court, and, therefore, on general principles-there seems to be no good reason why the ordinary rule regarding second appeals on questions of fact be not applied to such appeals.

26. I, therefore, accept the contention of Shri Chanda and hold that the appellant under an appeal under O. 43 R. 1 clause (u) is not entitled to agitate questions of fact as in a first appeal.

27. As I did not indicate my final opinion on this question during the course of arguments I allowed a good deal of latitude to the advocate for the appellants. He was allowed to take me through the whole of the evidence and to make elaborate submissions on questions of fact.

28. The contentions of Shri Chandmal in this connection may be formulated as follows:

(1) That the positive and direct evidence of the defendants' witnesses have not been satisfactorily refuted by the plaintiffs' evidence and the evidence has been wrongly rejected with reference to the general circumstances of the case;

(2) That the evidence of the expert N.K Mehta, produced by the plaintiff is general and is of no value as he omitted to compare the disputed writing with the specimen writing of the defendant. On the other hand the evidence of the defendants' expert Shri Krishna Beharilal has given his opinion after necessary comparison and his evidence has been wrongly and unjustifiably rejected by the District Judge.

29. Dealing with the contention on point No. 1 I may state that the defendants' first witness is Ramjani. The District Judge while considering his evidence has pointed out the following infirmities. Ramjani stated in his evidence that he was present when some 7 or 8 days before the execution of the receipt Ex. D. 1 by the plaintiff-respondents a settlement was effected between the parties and it was decided that an amount of Rupees 2600/- should be paid in final settlement.

30. This statement is said to be in variance with the statement of the plaintiff himself who says that none were present at that time. Secondly, it was pointed out that the statement of the witness Ramjani that at the time of the execution of the receipt it was agreed that the plaintiff will handover the documents to the defendant-appellant on his return to the house is quite contrary to the statement in the application Ex. D.W 2 that there was an agreement to return the documents in court.

31. I have gone through the evidence of Ramjani and I find further unsatisfactory features in his evidence. He says that at the time when the settlement was effected no documents were available or were examined. He could not say what amount was found due and what was remitted. He also does not give any reason how he happened to be present on both the occasions, firstly when the settlement was agreed upon and secondly, when the receipt was executed. He is thus a mere chance witness. He is co-employee with the defendant in the Jodhpur Municipality. I cannot hold in these circumstances that the District Judge is in error in rejecting the testimony of this witness.

32. Another witness of the defendant-appellants is Noor Mohd., who is brother-in-law of the defendant appellant No. 1 and is, therefore, interested. His evidence has been rejected on the ground that he failed to show how he came to possess an amount of Rs. 2600/- and that he has not produced any account books containing entry of payment of Rs. 2600/- to the defendant-appellant. It is really difficult to conceive that this witness should have agreed to loan Rs. 2600/- to the defendant-appellant to enable him to redeem the house without obtaining any receipt from the mortgagee and the title-deeds relating to the house. The rejection of his evidence is also quite in order.

33. The third witness Naliar Singh is also a chance witness and is another co-employee in the Municipality. His evidence also is of no great worth. To the infirmities pointed out in the defendants' evidence must be added the weight of an inference of the improbability of the defendants version arising from the undisputed circumstances of the case. The plaintiffs had filed a suit against the defendant. It is curious that the defendant would pay a substantial amount of Rs. 2600/- without producing a written compromise in the court.

34. He would not even care to get back the original mortgage-deed. The receipt which has been produced is also of a perfunctory type and there are materials to infer that the main receipt and the attestation by Ramjan Ali are in different ink. The District Judge was fully entitled to consider those circumstances leading to an inference about the improbability of the defence version and I see nothing wrong and improper in the mode of appraisement adopted by the District Judge.

35. Indeed when witnesses are not entitled to implicit reliances it is not only desirable but necessary to invoke the aid of inferences from the surrounding circumstances. I am fully satisfied that the District Judge has properly considered and weighed the circumstances and has rightly rejected the evidence of the defendant-appellants. This contention of the appellant's counsel is therefore rejected.

36. Coming to the second contention I may at once state that the evidence of Shri Mehta, an expert produced by the plaintiffs, is of very general nature. Having not adopted the usual mode of comparison of the disputed hand-writing with admitted hand-writing and having only pointed out general features, his evidence is quite inconclusive, and is of no substantial help. At the same time I do not consider the evidence of the hand-writing expert Shri Krishna Beharilal to clearly establish that the receipt Ex. D. 1 is in the hand-writing of the plaintiff-respondent.

37. I may in this connection state the rule as to how the specimen hand-writing should be taken. In obtaining a specimen hand-writing the same type of paper, the same colour of ink and the same kind of medium as were used in the disputed handwriting should be used as far as possible. Even, Krishna Beharilal has failed to adopt this. The witness was asked a question whether A to B in the receipt was not written after the formation of the verticle fold and he replied that he was not called upon to give an opinion on this point.

38. Similarly, he stated that he did not compare the ink of certain portions in the receipt. On going through the entire evidence I do not see any reason to differ from the District Judge's, estimate about his evidence. The contentions of Shri Chandmal have failed to persuade me to differ from the finding of the lower appellate court. On a consideration of the full circumstances of the case I do not see any justification for interfering with the finding of the District Judge. The appeal has no merits and is consequently dismissed with costs.

KC/D.H.Z

39. Appeal dismissed.