Punjab-Haryana High Court
Sandeep Kaur And Others vs Pspcl And Others on 3 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:044636
SAO-12-2024 (O&M) 2024:PHHC:044636
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
142
SAO-12-2024 (O&M)
Date of decision: 03.04.2024
SANDEEP KAUR AND OTHERS
..Appellants
Versus
PUNJAB STATE POWER CORPORATION
LTD. & ORS. ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Ajay Pal Singh, Advocate
for the appellants.
Mr. Manpreet Singh Longia, Advocate
for respondent No.1 to 3.
Mr. Vipul Joshi, Advocate
and Mr. Piyush Kumar, Advocate
for respondent No.4.
Mr. Dhiraj Jindal, Advocate
for respondent No.5.
ANIL KSHETARPAL, J(Oral)
1. This second appeal against order has been filed by the plaintiffs to assail the correctness of the First Appellate Court's order remanding the case back to the trial Court.
2. While issuing the notice of motion on 05.03.2024, the following order was passed:-
"The learned counsel representing the appellants inter alia contends that the First Appellate Court has erred in remanding the case back to the Trial Court without complying with the requirements of Order XLI Rule 23A of the Code of Civil Procedure, 1908.
Notice of motion.
Mr. Balwinder Singh Jolly, Advocate, who is present in the Court, accepts notice on behalf of respondent No.1 to 3.
1 of 6 ::: Downloaded on - 09-04-2024 21:32:26 ::: Neutral Citation No:=2024:PHHC:044636 SAO-12-2024 (O&M) 2024:PHHC:044636 -2- The appellants are granted liberty to serve the remaining respondents through their learned counsel in the Trial Court.
List on 15.03.2024, in the urgent list. Process dasti."
3. The matter has been once again heard at length.
4. In this case, the plaintiffs (appellants herein) filed a suit for recovery of Rs.7,00,000/- as damages on account of death of late Sh. Amritpal against the Punjab State Power Corporation Ltd., its officials and defendant No.5-the contractor, which was decreed by the trial Court vide detailed judgment passed on 02.08.2019.
5. Defendant No.4 filed the first appeal. The First Appellate Court has remanded the matter back to the trial Court with the following observations:-
"Ld. counsel appearing on behalf of PSPCL has mentioned in his written arguments that in fact defendants no.1 to 3 and 5 have complied with such decree and they have made payment of compensation along with amount of insurance in favour of plaintiffs and therefore, there is no merit in the appeal. Similar is the submission from Id. Counsel appearing on behalf of PSPCL. However, there is no force in such submissions so made on behalf of PSPCL as there are lot of contradictions in the relief clause as discussed above and further relief of insurance amount was granted without any claim from the side of plaintiffs. The matter does not end here as entire judgment of ld. Trial Court is silent that in which manner such amount of compensation has been assessed. Ld. Trial Court simply granted the amount of compensation of Rs.7,00,000/- as claimed in the suit without clarifying any criteria regarding such assessment.
In the given set of circumstances, there is option with this court but to set aside such judgment and decree consisting of contradictory reliefs as discussed above. Accordingly such judgment and decree dated 02.09.2019 is set aside with the acceptance of appeal and case is remanded back to Id. Trial Court to decide the case afresh, after hearing arguments, strictly as per law and in the light of observations so made in this judgment.
2 of 6 ::: Downloaded on - 09-04-2024 21:32:27 ::: Neutral Citation No:=2024:PHHC:044636 SAO-12-2024 (O&M) 2024:PHHC:044636 -3- Parties shall appear before ld. Trial Court on 10.01.2024. While file of this appeal be consigned to record and file of ld. Trial Court be returned at once."
6. In SAO-57-2023, titled as "Abdul Quddoors Vs. Ajit Singh (since deceased) through legal representatives and another", decided on 08.01.2024, this Court has examined the scope and enabling power of the Appellate Court to remand the case back to the trial Court, which reads as under:-
"3. From the reading of the order passed by the First Appellate Court, it is evident that the Court has found that in para Nos. 23 and 24 of the trial Court judgment, the onus was wrongly shifted on the defendants and the First Appellate Court allowed the application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"). In fact, the scope of Order XLI Rule 23 and 23A CPC has been explained by the Supreme Court in P.Purushottam Reddy and Another v. Pratap Steels Ltd. (2002) 2 SCC 686, in the following manner:-
"10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand in as much as the subordinate court can try only such issues as are referred to it for trial and having done so the evidence recorded together with findings and reasons therefore of the trial court, are required to be returned to the appellate court. However, still it was a 3 of 6 ::: Downloaded on - 09-04-2024 21:32:27 ::: Neutral Citation No:=2024:PHHC:044636 SAO-12-2024 (O&M) 2024:PHHC:044636 -4- settled position of law before 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand it such a remand was considered pre- eminently necessary ex debito justitiae, though not covered by any specific provision of Order 11 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Sub-rule (1) of Rule 27 being attracted such additional evidence oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra v. Sushila (AIR 1965 SC 365 at p.
399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand de hors the Rules 23 and 23A. To wit the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 11 Rule 31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties.
An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or 4 of 6 ::: Downloaded on - 09-04-2024 21:32:27 ::: Neutral Citation No:=2024:PHHC:044636 SAO-12-2024 (O&M) 2024:PHHC:044636 -5- Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided."
4. The learned counsel representing the respondent No.1 submits that the Supreme Court, in Shivakumar and Others v. Sharanabasappa and Others (2021) 11 SCC 277, has held that in appropriate cases, it is permissible for the Appellate Court to remand the case back to the trial Court. In Shivakumar's case (supra), the Court has held that the power of remanding the case back to the trial Court is required to be exercised sparingly and in the exceptional cases. It should not be exercised in routine. The Appellate Court can remand the case back to the trial Court either under Order XLI Rule 23 or 23A CPC. Order 23A provides that the Appellate Court can only remand the case back to the trial Court if the decree is reversed in appeal and retrial of the case is considered necessary. The First Appellate Court has all the powers to record additional evidence or seek report from the trial Court after framing an additional issue or allowing the application for additional evidence. Efforts should always be made by the Appellate Court to decide the case on merits, rather than remanding the case back to the trial Court because it entails delay and the decree, which has been passed, is set aside without going deep into the matter."
7. It is evident that the remand of the civil cases back to the lower Court is permissible only if conditions laid down in Order XLI Rule 23A of the Code of Civil Procedure, 1908, are fulfilled. It is incumbent upon the First Appellate Court to set aside the judgment and decree passed by the trial Court after analyzing it on merits and the retrial of the case is considered necessary.
8. In this case, the First Appellate Court has failed to fulfill the aforesaid requirements.
9. Keeping in view the aforesaid discussion, this Court is left with no choice but to set aside the judgment of the First Appellate Court with direction to decide the appeal afresh. The first appeal shall stand restored to its original number.
5 of 6 ::: Downloaded on - 09-04-2024 21:32:27 ::: Neutral Citation No:=2024:PHHC:044636 SAO-12-2024 (O&M) 2024:PHHC:044636 -6-
10. With these observations the present appeal is disposed of.
11. The parties through their learned counsel are directed to appear before the First Appellate Court on 30.04.2024.
12. All the pending miscellaneous applications, if any, are also disposed of.
April 03rd, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
6 of 6
::: Downloaded on - 09-04-2024 21:32:27 :::