AIR 1922 BOMBAY 267 ::1921 Bom LR(270) 769 ::1921 (23) Bom LR 769 ::(1921) 63 Ind Cas 478

Bombay High Court

Hon'ble Judge(s): Macleod , C.J. AND Shah , J

Civil P.C. (5 of 1908) , O.XII R.33, O.XII R.23— Decree - Ex parte - Appeal - Appellate Court has power to remand for retrial - C.P.C., S.191 The pleader of the defendants presented an Application for adjournment on the day fixed for hearing. The Court refused the application, proceeded to hear the plantiff's evidence ex parte and passed a decree. On appeal the Appellate Court held that although sufficient reason bad been shown for adjournment, it had no power to remand except when the case came, within O. XLI, R. 23. C. P. C. Held the power of remand by the Appellate Court could not be limited to the case described in O.XLI, R. 23. The lower Appellate Court has the power to consider the question whether the suit was heard ex parte against the appellant on sufficient grounds. If the Appellate Court is minded under the circumstances of a particular ease to reverse the decree of the Trial Court and to remand the suit to that Court for a retrial, it has power to do so It may be that a case may not fall within the scope of R. 23. O. XLI, hot the words of R. 33. O. XLI as also the provisions of S. 161 are wide enough to save the power of the Appellate Court to make an order enited to the circumstances of the case or in the inter-ret of justice, and if necessary to remand the suit for a retrial. .....