Punjab-Haryana High Court
Mahesh Dass vs Ishwar Singh & Ors on 24 January, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:009569
SAO-28 of 2016 (O&M) -1- 2024:PHHC:009569
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
SAO-28 of 2016 (O&M)
Date of Order:24.01.2024
Mahesh Dass
.Appellant
Versus
Ishwar Singh and others ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Sanjiv Gupta, Advocate
for the appellant.
Mr. Rakesh Chopra, Advocate
Mr. Jashan Chopra, Advocate,
for respondent no.1.
ANIL KSHETARPAL, J
1. The defendant no.1, in this Second Appeal against the Order
assails the correctness of the order passed by the first appellate court while
remanding the case back to the trial court after allowing an application for
permission to lead the additional evidence. The respondent (plaintiff) before
the trial court filed a suit for possession by way of specific performance of
the agreement to sell, which was dismissed by the trial court on 03.09.2012.
2. The plaintiff filed the first appeal. He also filed an application
for permission to lead additional evidence to prove that the stamp papers
were issued by a stamp vendor who did not hold the valid licence on the day
the stamp papers were issued. The first appellate court allowed the
application and thereafter proceeded to remand the case back to the trial
court while observing that the trial court has made certain observations
without any concrete basis.
3. In this appeal, the correctness of the aforesaid order has been
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challenged. After discussing the provisions of Order XLI Rule 23 and 23A
of the Code of Civil Procedure, 1908, in SAO-82 of 2015, this court has held
as under:-
4. The power of the Appellate Court to remand the case
back to the lower court is regulated by Section 107 read
with Order XLI Rule 23 and 23A of the Code of Civil
Procedure, 1908 (hereinafter referred to as 'CPC'). Rule
23 of Order XLI of CPC enables the Appellate Court to
remand the case back to the trial court if the judgment
has been passed on a preliminary issue and the aforesaid
finding on the preliminary issue has been set aside by the
Appellate Court. Rule 23A enables the Appellate Court to
remand the case back to the trial court if the decree is
reversed in appeal and a re-trial is considered necessary.
Thus, the power of remand of the Appellate Court is
available only in the eventualities provided under Rule
23 and 23A of Order XLI. It is incumbent for the
Appellate Court to set aside the judgment and decree
passed by the trial court on merits and conclude by
giving adequate reason for necessity of retrial of the suit.
On a careful reading of the operative part of the
impugned judgment, it is evident that the court has
neither set aside the judgment of the trial court on merits
nor it has recorded the reasons for which the re-trial is
considered necessary. Learned counsel representing the
respondent though requested to explain the reasons for
necessity of re-trial, however, he failed to draw the
attention of the Court in this regard."
4. The learned counsel representing the respondent while relying
upon the judgment passed in J.Balaji Singh v. Diwakar Cole and Others
(2017) 14 SCC 207, submits that the appellate court was not required to
discuss the case on merits particularly when the court decided to remand the
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case for deciding afresh to the trial court.
5. On the other hand, the learned counsel representing respondent
no.1 while relying upon the judgments passed in P.Purushottam Reddy and
Another v. Pratap Steels Ltd. (2002) 2 SCC 686 as well as
H.V.Vedavyasachar vs. Shivshankara and another, (2009) 8 SCC 231, has
contended that under order XLI Rule 23A of the Code of Civil Procedure,
1908, the remand order can only be passed by the appellate court after
setting aside the findings arrived at by the lower court and the court can even
do so briefly but in the facts of the case at hand the findings of the corut
below have not been set aside, not even briefly.
6. On a careful perusal of the Order XLI Rule 23A of the Code of
Civil Procedure, 1908, it is evident that before the appellate court decides to
remand the civil case back to the lower court, twin conditions are required to
be fulfilled, namely, the judgment passed by the trial court is set aside and
the re-trial of the case is considered necessary. Unless these two mandatory
conditions are fulfilled, it is not appropriate for the appellate court to remand
the case back to the trial court. This was the issue which was considered in
P.Purushottam Reddy's case (supra). The judgment passed in J.Balaji
Singh's case (supra) has also been considered by this court in Babu Lal vs.
Pawan Kumar and others (SAO No.53 of 2016, decided on 05.09.2023). It
is evident that in J.Balaji Singh's case (supra), the first appellate court after
allowing the application proceeded to record the additional evidence and
accepted the appeal, however, the High Court refused to interfere. In the
peculiar facts of the aforesaid case, the Supreme Court proceeded to remand
the case back to the first appellate court. It is evident that the aforesaid case
has been decided in the peculiar facts of the case. The attention of the
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Bench was not drawn to the judgment passed in P.Purushottam Reddy's
case (supra) which interprets the provisions of Order XLI Rule 23 and 23A
of the Code of Civil Procedure, 1908, elaborately. The view taken in
P.Purushottam Reddy's case (supra) has been consistently followed in the
subsequent judgments passed by the Supreme Court including the judgment
passed in H.V.Vedavyasachar's case (supra).
7. Keeping in view the aforesaid facts, the order of remand passed
by the First Appellate Court is set aside. The First Appellate Court is
directed to frame a distinct/additional issue and further direct the trial court
to submit a report on the aforesaid issue after permitting the parties to lead
evidence. On receipt of the report from the trial Court, the First Appellate
Court shall proceed to decide the matter in accordance with law.
8. Disposed of accordingly.
9. All the pending miscellaneous applications, if any, are also
disposed of.
January 24, 2024 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
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