Sanderson, C.J:— I think the reference may conveniently be considered in two parts.

First.—Whether the powers of the Appellate Court with regard to a remand under sec. 107 of the Code of Civil Procedure of 1908 is restricted to the case specified in Or. 41, r. 23, and second, whether it is competent to the Appellate Court to remand a case in which in the opinion of the Court there has been no proper trial.

As regards the first part:—

In order to ascertain the intention of the legislature on this point I think it is useful to examine the state of the law at the time the 1908 Code was passed.

Under the Civil Procedure Code of 1882, the section which corresponded in effect to Or. 41, r. 23, was 562. That section however was followed by 564 which provided that “The Appellate Court shall not remand a case for a second decision except as provided in sec. 562.”

Sec. 566 of the 1882 Code corresponded to Or. 41, r. 25 of the present Code.

It had been held that though the Code of Civil Procedure of 1882 bound all Courts as far as it went, it was not exhaustive and did not affect previously existing powers, and that in matters with which it did not deal the Court would exercise inherent jurisdiction to do that justice between the parties which was warranted by the circumstances and which the necessities of the case required and that in spite of the express provision of sec. 564 the Appellate Court was not precluded from remanding a suit in a case to which neither sec. 562 nor sec. 566 applied. See Habib Bukhsh v. Baldeo Prosad(1) and Hukum Chand Boid v. Kamalanand Singh.

The law being as stated above with regard to the power of remand the 1908 C.P.C was passed.

The scheme of this Code is different from that of 1882. A general power is given by sec. 107 which is made by its terms subject “to such conditions and limitations as may be prescribed” (which means prescribed by rules) and the provisions of secs. 562 and 566 of the old Code are in effect reproduced in Or. 41, rr. 23 and 25, and sec. 564 has not been re-enacted either in the Code itself or in the Rules.

Further, a new section applicable to this matter, viz., sec. 151, was introduced. This section is as follows:—“Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

In my judgment it was not the intention of the legislature in the Code of 1908 to limit the powers of remand to the case specified in Or. 41, r. 23, but that it intended to and did recognize and preserve such powers as had been exercised theretofore.

I think it may fairly be argued that under sec. 107 read by itself, and having regard to the words “subject to such conditions and limitations as may be prescribed” the power of remand is limited to the case described in Or. 41, r. 23: but that does not dispose of the matter, for that section must be read together with sec. 151 which not only recognises but expressly preserves the inherent powers of the Court to make such orders as may be necessary for the ends of justice.

The question whether it is necessary for the ends of justice to exercise such powers of remand must depend upon the circumstances of each particular case and in exercising such jurisdiction the Court must no doubt be careful to see that its decision is based on general legal principles and subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case in question, such provisions should be followed and the inherent jurisdiction should not be invoked.

In my judgment, therefore, the powers of the Appellate Court as regards remand are not restricted to the case specified in Cr. 41, r. 23, but the Court, by reason of its inherent jurisdiction, recognised and preserved in the Code as above-mentioned, may order a remand in cases other than the case specified in Or. 41, r. 23, if it be necessary for the ends of justice.

As regards the second part of the reference I think on further consideration that it is couched in too general terms, and that an answer to such a general question might lead to difficulty and misapprehension and inasmuch as the answer to the first part of the reference is really sufficient to dispose of the matter, I do not think it is necessary to give a specific answer to the second part of the reference.

Woodroffe, J.:— The reference raises two questions, firstly, whether the Court's power of remand under sec. 107 is restricted to the case specified in Or. 41, r. 23 of the Code, and secondly, (if the answer be in the negative) whether it is competent to the Appellate Court to remand a case in which, in the opinion of that Court, there has been no proper trial. These two matters should, I think, be kept distinct. As regards the first part of the reference, the power to remand is sought to be based both on sec. 107 of the Code and on the inherent jurisdiction. In my opinion sec. 107 cannot be relied upon as giving further powers than those which are specifically mentioned in the Rules. This question of the relation between the body of the Code and the Rules has been discussed in Mani Mohan v. Ramtaran by Sir Lawrence Jenkins, C.J, who took part in the framing of the new Code. I agree with what is there said and I need not repeat the whole of it. The body of the Code creates jurisdiction while the Rules indicate the mode in which it is to be exercised. The body of the Code must, therefore, be read in conjunction with the Rules either as existng at the date of publication of the Code, or as altered or added to subsequently. A contrary view might lead to difficulties, for (to take an example) it might be urged that sec. 114 of the Code gave the Court power to entertain a review in cases not covered by Or. 47, r. 1. I think, therefore, that the power of remand under sec. 107 is limited to the case described in r. 23, Or. 41. If this were not so, the Rules would be unnecessary, for the general power of remand would cover not only Or. 41, r. 23, but every other conceivable case. But Sir Lawrence Jenkins went on to say “and this is the general rule except under special conditions which have no application in the circumstances of the case”. What is it which authorises the Court to act in such cases? In my opinion we must invoke in such a case the inherent powers of the Court which are both recognised and saved by sec. 151 of the Code. I have dealt with this question whether the Code is exhaustive or not and whether the Court has inherent jurisdiction to pass such orders as justice requires in my judgment in Hukurn Chand Boid v. Kamalanand Singh, and I, therefore, do not repeat what I have said there. Doubtless this exercise of inherent jurisdiction must be exercised with care subject to the general legal principles and to the condition that the matter is not one with which the legislature has so specifically dealt as to preclude the exercise of inherent power. But it is argued here that the Code has dealt with the subject of remand and has therefore indicated that it is not to be ordered except in the one specific instance mentioned in Or. 41, r. 23. I am not prepared to hold this, the more so that sec. 564 of the previous Code has not been re-enacted. The mere fact that sec. 107 deals with remand does not exclude the Court's inherent jurisdiction to make orders of remand in cases other than those covered by Or. 41, r. 23. I am of opinion, therefore, that the powers of the Appellate Court as regards remand are not limited to the specific case mentioned in Or. 41, r. 23, and that the Court, under its inherent jurisdiction to do what is right and necessary, may order a remand in cases other than those covered by that order if justice so requires it. Whether justice does require a Court to invoke its inherent jurisdiction, must be determined by that Court with reference to the particular facts of the case and the rule of law that a Court cannot invoke an inherent jurisdiction where there is a provision in the Code, whether by way of remand or otherwise, which, if applied, will meet the justice of the case. The merits of the particular application out of which this reference arose are not before us.

The second part of the reference is in such wide terms that I feel a difficulty in answering it in a manner which will not lead to misapprehension. Thus the words a “proper trial” might include cases within Or. 41, and an answer in the affirmative might enable the Courts to order wrongly a new trial although the particular case ought to be dealt with under the provisions of Or. 41. It is the less necessary to do so as the Advocate-General has stated that he will be satisfied with a decision given on the first part of the reference.

Mookerjee, J.:— The question referred for decision has been framed in the following terms: “Whether the power of the Appellate Court with regard to a remand under sec. 107 of the Code of Civil Procedure is restricted to the case specified in Or. 41, r. 23 of the same Code, or, whether it is competent to the Appellate Court to remand a case in which, in the opinion of that Court, there has been no proper trial.”

I shall confine myself to an examination of the first branch alone of the question formulated; for, if it is answered in the negative, the second does not arise, while if it is answered in the affirmative, the second need not be considered, as it is not necessary for our present purpose to specify the limits of the power of remand, if such power is capable of exercise in cases other than those contemplated by Or. 41, r. 23.

Sec. 107 recognises the power of an Appellate Court to remand a case, but such power is expressly made subject to such conditions and limitations as may be prescribed, that is, prescribed by rules and forms contained in the first schedule or made under sec. 122 or sec. 125. (Sec. 2, cls. 16 and 18). This, in my opinion, does not necessarily imply that wherever there is a provision in the Rules relating to the matters mentioned in the section, the provision is by way of condition or limitation; whether a particular Rule has or has not this effect must clearly depend on its terms. This is not inconsistent with the view indicated by Jenkins, C.J, in Mani Mohan v. Ramtaran, that the body of the Code creates jurisdiction while the rules indicate the mode in which it is to be exercised, which, it is important to observe, is essentially different from the view adopted by Stephen, J., in Nabin Chandra v. Pran Krishna, that the sections lay down general principles while the rules provide the means by which they can be applied and they cannot be otherwise applied as the rules restrict the provisions contained in the sections. I do not read Or. 41, r. 23, as a limitation on the power of remand recognised in sec. 107 in the sense that the power to remand can be exercised only in the contingency mentioned in Or. 41, r. 23. Apart from this, it seems to me to be incontestable that sec. 151, which embodies a statutory recognition of the inherent power of a Court to make such orders as may be necessary for the ends of justice, gives ample authority to the Court to make an order of remand in cases not comprised within Or. 41, r. 23, where the Court is satisfied that such order is necessary for the ends of justice. Sec. 151 does not recognise a new principle; it embodies a doctrine which had been enunciated by Sir Barnes Peacock in Hurro Ckunder v. Shoorodhonee(5) and was restated and reaffirmed by Woodroffe, J., and myself in Panchanan v. Dwarkanath(6) and Hukum Chand v. Kamalanand; I feel no doubt whatever that nothing in sec. 107 restricts in any manner the application of the principle of inherent power recognised by sec. 151. This was the view adopted by me, after careful consideration and in concurrence with Carnduff, J., in Zohra Bibi v. Zobeda Khatun and Gora Chand v. Basanta Kumar. I see no reason to depart from that view, which has been subsequently followed in Upendra v. Sabhan and Ujir Ali v. Savai Behara. The decision of Jenkins, C.J, and N.E Ghatterjea, J., in Mani Mohan v. Ramtaran also recognises the power of a Court of Appeal to order a remand under special conditions not included in Or. 41, r. 23. I respectfully dissent from the contrary view expressed by Stephen and Mullick, JJ., in Nabin Chandra v. Pran Krishna. That the Code itself recognises the power of a Court to direct a remand in circumstances other than those specified in Or. 41, r. 23, is clear from the terms of sec. 99. I am fortified in my conclusion by an examination of the condition of the law as it stood under the Code of 1882. Sec. 564 explicitly provided that the Appellate Court shall not remand a case for a second decision except as provided in sec. 562; yet the Courts had repeatedly claimed a power to direct a remand in circumstances not included in sec. 562. The Court sometimes traced the source of this authority to its inherent power to make such orders as might be needed for the ends of justice, as in Perumbra v. Subramanian(11), but on other occasions the Court, apprehensive as it were to invoke its inherent power, treated the authority as involved by implication in one or other of the provisions of the Code, for instance, in Habib v. Baldeo, (see also Jadab Gobinda v. Anath Bandhu(12). While the law was in this condition, the legislature took two significant steps, namely, first, they refrained to reproduce in the Code of 1908 the restrictive provision contained in sec. 564, and, secondly, they introduced in the Code of 1908, sec. 151, which recognises in explicit terms the inherent power of a Court to make such orders as may be necessary for the ends of justice. The only inference legitimately deducible from this history of the legislation on the subject is that the legislature intended to place beyond all doubt and dispute the authority of an Appellate Court to direct a remand and retrial in cases other than those comprised in Or. 41, r. 23, where the Court is satisfied that such order is necessary in the ends of justice. There is, on the other hand, the significant fact that secs. 584 and 585 of the Code of 1882, which enumerated the grounds for a second appeal and prescribed a restriction that a second appeal did not lie on any other ground, re-appear as secs. 100 and 101 of the Code of 1908. The view that a Court of Appeal is competent to direct a remand and re-trial in a case not covered by Or. 41, r. 23, if the Court is satisfied that such an order is necessary in the ends of justice, has been adopted in other High Courts under the Code of 1908, Norattam v. Mohanlal, Kuppalam v. Kunjuvalli(14) and Jambulayya v. Rajamma(15). It is undeniable that exceptional cases, not capable of exhaustive enumeration or classification, do sometimes occur in which defects of trial are so radical as to be incurable otherwise than by a re-trial de novo. In a case of this description, it is incumbent on the Court of Appeal to exercise its inherent power to make such orders as, in its opinion, are required in the ends of justice. The exercise of such inherent power can only be invoked where the Court is satisfied that the specific provisions of the Code are not sufficient to meet the necessities of the case. The Court of Appeal is invested with plenary powers to correct errors of procedure committed by the trial Court, as is clear from an examination of rr. 24-29 contained in Or. 41 of the Code. These provisions cannot be arbitrarily disregarded, on well-established principles which regulate the exercise of inherent power by a Court of Justice as explained in the judgments in Hukum Chand v. Kamalanand and Punchanan v. Dwarkanath; but where the Court of Appeal is satisfied that the correction of the omissions or defects in the trial is not reasonably practicable by recourse to one or other of the provisions mentioned, that is, where it is clearly apparent that the Appellate Court cannot itself satisfactorily dispose of the suit on the merits by the adoption of the specific procedure mentioned in rr. 24-29, a remand for re-trial is not only permissible but obviously incumbent on the Court. This view has been followed in practice in this Court for a long series of years and this is obviously a case for the application of the maxim cwrsus curice est lex curice. In my opinion, the reference should be answered in the terms mentioned in the judgment of the learned Chief Justice.

Chitty, J.:— The following question has been referred for decision by the Full Bench:—“Whether the power of the Appellate Court with regard to a remand under sec. 107 of the Code of Civil Procedure is restricted to the case specified in Or. XLI, r. 23 of the same Code, or whether it is competent to the Appellate Court to remand a case in which in the opinion of that Court there has been no proper trial”. These are really two separate questions, to which it would be inconvenient if not impossible to give a single answer.

Dealing with the first part of the question I confess that I was at first sight inclined to think that Or. XLI, r. 23, while prescribing a condition to a remand under sec. 107 (1)(b) did not impose any limitation on the power of an Appellate Court under that section. There are no words of limitation to be found in r. 23. As was said by the Court in Zohra Bibi v. Zobeda Khatun. “R. 23 makes provision for a particular contingency, but clearly in its scope is neither exclusive nor all-embracing”. Sec. 99, also, which precedes sec. 107 and which forbids a remand under certain circumstances, seemed to me to imply that there may be cases of remand not covered by Or. XLI, r. 23. On the other hand, however, it may be reasonably urged that, if Or. XLI, r. 23, merely prescribed one contingency, in which a remand may be made, and leaves the general provisions of sec. 107 otherwise unfettered in this respect, then r. 23 is wholly unnecessary and superfluous, and the same might also be said of the other Rules which regulate the powers of an Appellate Court conferred by sec. 107, viz., rr. 24 to 29 inclusive. It is obvious that this cannot have been the intention of the legislature which framed the present Code and Rules together. It may be noted that by Or. XLIII, r. 1(u), the right of appeal is given only against an order under Or. XLI, r. 23, remanding a case. This indicates that the only order of remand under sec. 107(1)(b) contemplated by the Code and Rules as framed is one made under Or. XLI, r. 23. I had the advantage of reading the judgment of Woodroffe, J., and I agree with what he has said in this connection. This was also the view expressed by the late Chief Justice Sir Lawrence Jenkins in the case of Mani Mohan Mandal v. Ramtaran Mandal and his opinion is entitled to all the more weight as he was in a great measure responsible for the Code of Civil Procedure and the Rules as they now stand.

It follows that the first part of the question must be answered in the affirmative, but the matter does not end there. I entirely agree that while the power of remand given to an Appellate Court by sec. 107(1), (b) is restricted by Or. XLI, r. 23, the inherent power of the Court which is expressly reserved to it by sec. 151 may be invoked to enable it to make an order of remand in circumstances which are not provided for by the Code or the Rules. This power must be exercised with the greatest caution. It must not be exercised to enable the Court to pass an order contrary to the provisions of the Code or the Rules. Nor can it properly be exercised in circumstances where the Code or Rules provide an adequate remedy, as for example in the case Mani Mohan Mandal v. Ramtaran Mandal, above cited, which was a case of adducing additional evidence. A good example of a case to meet which there is no provision in the Code or Rules is Zohra Bibi v. Zobeda Khatun, also above cited, which is the earliest of the cases now under review. Sir Lawrence Jenkins no doubt had this in mind when he said, “These rules provide that in the case of a lower Appellate Court the power of reversal and remand is limited to the position described in r. 23, Or. XLI. And this is the general rule except under special conditions which have no application in the circumstances of this case”. In this view of the matter the prohibition on remands contained in sec. 99 also becomes intelligible.

I do not think that the second part of the question can be properly answered by this Full Bench. The expression “case in which in the opinion of the Appellate Court there has been no proper trial” opens up questions of fact, into which this Bench cannot go. It is however unnecessary to discuss the matter further as the learned Advocate-General stated that he would be content with an answer to the first question.

Teunon, J.:— This reference arises out of an application for review of the judgment delivered in Appeal No. 27 of 1916, and the question referred to the Full Bench has been stated in the following terms: namely, whether the power of the Appellate Court with regard to a remand under sec. 107 of the Code of Civil Procedure is restricted to the case specified in Or. 41, r. 23 of the same Code or whether it is competent to the Appellate Court to remand a case in which, in the opinion of that Court, there has been no proper trial.

Sec. 107, sub-sec. (1) of the Code provides that subject to such limitations and conditions as may be prescribed an Appellate Court shall have power:—

(a) to determine a case finally,

(b) to remand a case,

(c) to frame issues and refer tliem for trial,

(d) to take additional evidence or to require such evidence to be taken.

Bor the purposes of this reference sub-sec. (2) may be, disregarded.

The limitations and conditions prescribed are to be found in the rules contained in the 1st Schedule to the Code, that is, in the rules contained in Or. 41.

It is now well-settled that as regards matters specifically dealt with by the Code, the provisions of the Code are exhaustive. It would seem to follow that when an Appellate Court finds itself unable to arrive at a final determination, it should deal with the case under one or other of the sub-cls. (b), (c) and (d) in accordance with the circumstances set out in the appropriate rule. A case should therefore be remanded, in other words, a de novo trial should be directed only where Or. 41, r. 23, is applicable, that is to say, whether the trial Court “has disposed of the suit upon a preliminary point.”

In the course of the argument before us some stress was laid upon the omission from the present Code of the express prohibition of a de novo trial in other cases which was to be found in sec. 564 of the Code of 1882. To this omission I am unable to attach any great importance as in the view I take the provisions of sec. 564 of the last Code have been in effect incorporated in the wider language used in the opening clause of sec. 107(1), that is to say, in the words “subject to such limitations and conditions as may be prescribed.”

I have set out above my view as to the general rule.

But sec. 107 contemplates and proceeds on the assumption that there has been in the 1st Court a fair and honestly conducted tral. But other exceptional cases may be conceived. It may be found that the trial Judge was disqualified by personal interest, or that owing to the attitude assumed by the Judge, either party has been precluded from putting forward his case. In such cases and in other cases, where, for instance, a minor has been improperly treated as a major, in all such cases (and I attempt no exhaustive enumeration of such special conditions) where it may be said that in effect there has been no trial, it is necessarily open to the Appellate Court, in the exercise of the inherent jurisdiction for which sec. 151 of the Code now makes express provision, to direct a remand or a re-trial.

Of the six cases decided by this Court that have been cited in the order of reference or discussed in the argument before us, three namely, Zohra Bibi v. Zobeda Khatun, Upendra v. Sabhan and Ujir Ali v. Savai Behara, it may be observed, are cases where after adding parties the Appellate Court directed a de novo trial. A remand in such cases may perhaps be supported under the provision of Or. 41, r. 23, the trial having been vitiated by the 1st Court's erroneous decision on the preliminary question of non-joinder and by the absence of the assistance which the added party was in a position to give. Otherwise the decision is justified under sec. 151 of the Code. These three cases, the case of Gora Chand v. Basanta Kumar, and the observations of Jenkins, C.J, in Mani Mohan v. Ramtaran support in my opinion the view I take. The remaining case Nabin Chandra v. Pran Krishna may possibly be said to be against it but it is doubtful whether in that case the learned Judges had in view the exceptional circumstances which may make recourse to sec. 151 necessary.

For the above reasons and subject to the foregoing observations my answer to both branches of the question referred to us is in the affirmative.

Mr. H.C Banerjee, Solicitor, for the Defendant-Appellant.

Messrs Leslie and Hinds, Solicitors, for the Plaintiff-Respondent.

S.C.M