Punjab-Haryana High Court
Dr. A. K. Talwar vs S.D.O./ Agm Dhbvnl And Another on 1 July, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:080984
SAO-40-2019 (O&M)
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111 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
SAO-40-2019 (O&M)
Date of decision : 01.07.2024
Dr. A.K. Talwar(Adarsh Kumar Talwar) ...Appellant
Vs.
S.D.O./AGM (OP) Sub Division, DHBVNL
and another ...Respondents
CORAM:- HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Gaurav Tyagi, Advocate for
Mr. A.K. Talwar, Advocate
for the appellant.
Mr. Aman Bahri, Advocate
for the respondents.
***
ANIL KSHETARPAL, J. (Oral)
1 The plaintiff assails the correctness of the First Appellate Court's
order remitting the matter back to the trial Court for fresh decision on the
ground that the separate findings on each issue has not been separately
recorded. Originally, the plaintiff filed a suit for grant of decree of declaration
with a consequential relief of mandatory and permanent injunction claiming
that he has been wrongly directed to pay Rs.1,40,178/- towards electricity
consumption charges. The suit was contested by the defendants i.e Electricity
Supply Company and was dismissed on the ground of lack of jurisdiction. The
plaintiff filed the first appeal, which has been allowed while remitting the case
back to the trial Court.
2. Heard the learned counsel representing the parties at length and
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SAO-40-2019 (O&M)
with their able assistance perused the paper-book.
3. The enabling power of the First Appellate Court to remit the
matter back to the trial Court is regulated by Order XLI Rule 23 and 23-A of
the Code of Civil Procedure, 1908. In this case, the suit was not decided on a
preliminary issue, hence, Order XLI Rule 23 of the Code of Civil Procedure,
1908 shall not be applicable. Order XLI Rule 23-A of the Code of Civil
Procedure, 1908 enables the First Appellate Court to remit the matter back to
the trial Court, if the decree is reversed in appeal and re-trial is considered
necessary. In this case, the First Appellate Court has neither reversed the
decree passed by the trial Court nor found that a re-trial is necessary. The First
Appellate Court is a Court of fact and law both. The evidence has already been
led by the parties on all the issues.
4. Upon appreciation of evidence, the First Appellate Court should
have decided the matter. Remitting the matter back to the trial Court should be
avoided. The scope of Order XLI Rule 23-A of the Code of Civil Procedure,
1908 has been explained by the Hon'ble Supreme Court in 'P.Purushottam
Reddy and Another v. Pratap Steels Ltd'. (2002) 2 SCC 686, laid down as
under:-
"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 XLI 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
XLI 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
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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 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 XLI 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
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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."
5. Keeping in view of the aforesaid discussion, the impugned order
passed by the First Appellate Court is set aside.
6. Learned counsel representing the respondent has submitted that
the plaintiffs suit was dismissed for non-prosecution on 01.02.2020. Be that as
it may.
7. Once the order remitting the matter back to the trial Court has
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been set aside, the dismissal of the suit for non-prosecution has to go. The
appeal filed by the appellant is restored to its original number with direction to
the First Appellate Court to decide the matter afresh in accordance with law.
8. The parties through their counsel are directed to appear before the
First Appellate Court on 26.07.2024.
9. The appeal stands disposed of.
(ANIL KSHETARPAL)
01.07.2024 JUDGE
neeraj
Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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