Punjab-Haryana High Court
Mangal Singh And Ors vs Paramjit Kaur And Ors on 16 January, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:005549
SAO-72-2017 (O&M) 2024:PHHC:005549
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
107
SAO-72-2017 (O&M)
Date of decision: 16.01.2024
MANGAL SINGH AND ORS.
..Appellants
Versus
PARAMJIT KAUR AND ORS.
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Gagandeep Singh Sirphikhi, Advocate
for the appellants.
Mr. Ajay Pal Singh Rehan, Advocate
for respondents.
ANIL KSHETARPAL, J(Oral)
1. In this second appeal against order, the defendants challenged
the correctness of order passed by the First Appellate Court while remanding
the case back to the trial Court for fresh decision after setting aside the
judgment and decree passed in their favour. It is evident that the First
Appellate Court has remanded the case back to the trial Court only on
allowing the application filed under Order XLI Rule 27 of the Code of Civil
Procedure, 1908 (hereinafter referred to as the "CPC") i.e. for permission to
lead additional evidence.
2. 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 enabling power of the Appellate
Court to remand the case back to the trial Court, which reads as under:-
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"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 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
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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 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
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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."
3. The learned counsel representing the respondent is unable to
dispute that in view of the provisions of Order XLI Rule 25 of the CPC, the
First Appellate Court may seek report from the trial Court, if, an additional
issue is culled out. In this case, the trial Court has passed a decree against
the plaintiff, and the same can only be set aside on merits only after
discussing the entire case. The First Appellate Court has not adopted the
aforesaid procedure.
4. Keeping in view the aforesaid facts, the order of remand to the
trial Court is substituted by an order requesting the trial Court to record the
additional evidence and submit report to the First Appellate Court.
5. Since, the plaintiff has been granted an opportunity to lead
additional evidence, an additional opportunity, if prayed for by the
defendant, shall also be granted to him. The report after recording the
evidence be submitted by the trial Court within a period of three months
from the date of this order. Hence, the order passed by the First Appellate
Court is set aside to the extent of remanding the case back to the trial Court.
The first appeal stands restored to its original number.
6. The parties through their learned counsel are directed to appear
before the First Appellate Court on 05.02.2024.
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7. Disposed of accordingly.
8. All the pending miscellaneous applications, if any, are also
disposed of.
January 16th, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2024:PHHC:005549
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