to pay money to A., and the court before (and without) entering upon that inquiry decides that the action (if any) is barred by lapse of time, and accordingly dismisses the suit under Sec. 154, the point regarding the bar should be held to be a 'preliminary point within the meaning of this section.

But where in a suit there are two or more main points for decision, and the court decides one of such points in disfavor of the plaintiff, and thereupon dismisses the suit without more, the question may arise on appeal whether such point was or was not a 'preliminary point' within the meaning of this section. For example: Suppose A. sues for the recovery of immoveable property as being the illegitimate son of a deceased Sudra, and the issues are two, namely, (1) is A. the son of the deceased? (2) being such, is he entitled? and the court finds that A. would not be entitled if he were the son of the deceased, and thereupon dismisses the suit without considering the question of A.s parentage,—in such case the question might very well arise, was the point regarding A.s title a 'preliminary point' within the meaning of this section? I imagine that it would not; and that therefore this section would not apply, but the appellate court would properly deal with the case under Sec. 566. The latter part of this section seems to show that this section will properly apply where the decision was wholly irrespective of the merits, not where there has been a partial and defective investigation of the suit on the merits.

Essential-Sec. 146 makes it necessary for the court to frame and record the issues of law and fact "on which the right decision of the case appears to the court to depend," and Sec. 204 makes it necessary for the court to "state its finding or decision on each separate issue, unless the finding upon any one or more of the issues be sufficient for the decision of the suit." Where the court omits to do both or either of these things, its procedure will be pro tanto irregular and defective, but on appeal the appellate court will not in any case reverse the decree by reason only of such irregularity and defect. Where the decree is wrong, but sufficient evidence has been recorded, the appellate court shall finally determine the case' under Sec. 565. Where the decree is wrong, and sufficient evidence

has not been recorded, the appellate court will remand' under this section, or 'refer an issue' or issues under Sec. 566, according to the circumstances of the case, regard being had to the question, was the wrong decree passed "upon a preliminary point" or upon the merits?

The appellate Court may.-It will be observed that this gives the appellate court a discretionary power to remand': does not make it obligatory on the court to remand any case whatever. The appellate court may always act under Sec. 566 in preference to acting under this section, if it thinks fit so to do in the circumstances: and in many cases it will be more convenient for the appellate court itself to determine a defectively investigated suit, than to remand it to the lower court under this section, where such remand may be legally proper.

By order. This is new. Formerly the order was made in the form of a decree. This new order is made appealable under Sec. 588 (w).

Remand the case. The word remand,' from the Latin re-manus-do, means give back into the hand; order back; send back. To 'remand a case must be distinguished from to 'refer' issues under Sec. 566.

563. When a case is remanded with directions to take any evidence so excluded, the Court to which the case is remanded When further shall not take any other evidence in the case, except evidence tendered to contradict the evidence so taken.

evidence barred.

I cannot understand the object of this new section. Under Sec. 562 the remanded suit must be "investigated on the merits," and one would imagine that in disposing of it the court must take all the relevant and admissible evidence tendered on either side. 564. The appellate Court shall not remand a case for a second decision, except as provided in section 562.

Limit to remand.

But shall itself decide, proceeding, if necessary, under Sec. 565 or Sec. 566, as the case may be. The prohibition leaves the Appellate Court no discretion.

For a second decision. Of the whole matter in controversy. The court may remit any case for the trial of one or more issues, if necessary, under Sec. 566.

When evidence on

565. When the evidence upon the record is sufficient to enable the appellate Court to pronounce judgment, the appellate Court shall, after re-settling the issues if necessary, finally determine the case notwithstanding that the determine case finally. judgment of the Court against whose decree the appeal is made has proceeded wholly upon some ground other than that on which the appellate Court proceeds.

record sufficient, ap: pellate Court

shall

The section turns on the words "sufficient evidence upon the record."

Shall finally determine.-The words are imperative: sufficient evidence being before the Appellate Court, it must itself decide upon that evidence.

When appellate Court may frame issues and refer them

566. If the Court against whose decree the appeal is made has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate Court essential to the right decision of the suit upon the merits, and the evidence upon the record is not sufficient to enable the appellate Court to determine such issue or question, the appellate Court may frame issues for trial, and may refer the same for trial to the Court against whose decree the appeal is made, and in such case shall direct such Court to take the additional evidence required,

for trial to Court whose decree is appealed against.

and such Court shall proceed to try such issue, and shall return to the appellate Court its finding thereon together with the evidence.

The section turus on the words "not sufficient evidence upon the record." It must be carefully distinguished from Sec. 562 on the one hand, and Sec. 568 on the other hand.

Sec. 562 provides for the 'remand of a case,' for restoration to the file and investigation on the merits, no such investigation having as yet been made. This section provides for the 'reference of an issue' to be tried by the lower court, in a case to which Sec. 565 will not apply. Where the case is remanded, the lower court forthwith restores the case to its file, regains jurisdiction, and reopens the investigation of the whole case at the point that was reached when its decree was passed. Where an issue is 'referred,' the lower court does not regain jurisdiction, has no concern with the investigation of the case as a whole, and merely proceeds as directed to hear and determine a particular question or particular questions in aid of the investigation that is being made by the appellate court.

Again when additional evidence is taken by the lower court under Sec. 569, the lower court merely registers such evidence ministerially it determines no question judicially.

Where an appellate court appears not to have taken into its consideration a presumption of fact arising out of the circumstances in evidence and materially affecting the decision of the case, that is such defect' within the meaning of Sec. 372 as the High Court will remedy on special appeal by directing an issue. Nilatatchi v. Vencatachala Mudaly, 1 H. C. R. 131. The object of a reference under this section is not that the judge shall try the issues on the evidence already taken, because the court sitting in regular appeal can do that for itself; but he should take such evidence as the parties may have to offer for the determination of the issues. Abdool Khyrat v. Jumalooddeen Hossain, 10 Suth. W. R., 244.

May frame issues.—I understand this procedure to be obligatory on the courts, when the case arises. No alternative procedure seems to be provided, or to be possible. But see Sec. 568 (b).

Finding and evidence to be put on record.

Objections to finding.

Determination of appeal.

567. Such finding and evidence shall become part of the record in the suit; and either party may, within a time to be fixed by the appellate Court, present a memorandum of objections to the finding.

senting such memorandum, the appellate Court shall After the expiration of the period fixed for preproceed to determine the appeal.

Within a time.-In no case after its expiry. Ashrufoonissa Begum v. Stewart, 9 Suth W. R., 438. Sufficient time must be allowed. Bukhtouree v. Meheen Lall and others, 3 Agra Rep., 96. A notice will be affixed in the court-house on receipt of the finding of the lower court, and any memorandum of objections against such finding must be put in within fifteen days from the date of such notice. Civil Digest, p. 43.

Memorandum of objections.-Where an issue has been directed and the finding and evidence returned, a special appellant cannot take an objection going to the merits which otherwise would not properly be open upon special appeal. Nilayatatchi v. Venkatachalam Mudeli, 1 H. C. R., 250.

Production of additional evidence in ap

pellate Court.

568. The parties to an appeal shall not be enti tled to produce additional evidence, whether oral or documentary, in the appellate Court. But if

(a) the Court against whose decree the appeal is made refused to admit evidence which ought to have been admitted, or

(b) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the appellate Court may allow such evidence to be produced, or document to be received, or witness to be examined.

Whenever additional evidence is admitted by an appellate Court, the Court shall record on its proceedings the reason for such admission.

For obvious reasons the power given by this section must be used only with the greatest caution. And the reason for admitting fresh evidence must, in every case, be set out with sufficient particularity and fulness to enable the court above, if necessary, to judge of the necessity for and propriety of the action taken.

This section authorizes the appellate court to call for fresh evidence in certain cases: but by no means relaxes the obligation, imposed by divers sections, of adducing evidence at the proper time. It is intended to further the doing substantial justice between the parties, but not to furnish an opportunity of surprising an opponent at the last moment, or of remedying a partys omission to comply with clear provisions of the law in the court of first instance. Thus, for example:-Where a substantive allegation is made by plaintiff, in support of which it is clear documentary evidence should be filed, and he fails to establish it by exhibits, he cannot in the appeal stage ask for a remand to enable him to do so. Joy Kishen Doss v. Mussamut Petum Kooeri, 2 M. J., 102.

Mode of taking ad

569. Whenever additional evidence is allowed to be received, the appelthe Court against whose decree the appeal is made, or late Court may either take such evidence, or direct any other subordinate Court, to take such evidence to the appellate Court.

ditional evidence.

and to send it when taken

Points to be defined

and recorded.

570. In all cases where additional evidence is directed or allowed to be taken, the appellate Court shall specify the points to which the evidence is to be confined, and record on its proceedings the points so specified.

Of the Judgment in Appeal.

571. The appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether Judgment when and where pronounced. on appeal or in the Court against whose decree the appeal is made, to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day, of which notice shall be given to the parties or their pleaders.

Compare with Sec. 198.