Anmol Rattan Deep Singh vs Baljit Singh And Ors
2024 Latest Caselaw 10905 P&H

Punjab-Haryana High Court

Anmol Rattan Deep Singh vs Baljit Singh And Ors on 5 July, 2024

Author: Anil Kshetarpal

Bench: Anil Kshetarpal

                                   Neutral Citation No:=2024:PHHC:083380




SAO-30-2018 (O&M)                      1

IN THE HIGH COURT OF PUNJAB AND HARYANA
                 AT CHANDIGARH

                                           SAO-30-2018 (O&M)
                                           Date of decision: 05.07.2024

Anmol Rattan Deep Singh
                                                  ....Appellant

               Versus

Baljit Singh and others
                                                 ..Respondents

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present:-      Mr. Sunny K Singla, Advocate for the appellant

               Mr. Ashok Singla, Advocate for the respondents

ANIL KSHETARPAL, J (Oral)

1. In this Second Appeal, the correctness of the First Appellate

Court's order remitting the matter back to the trial court is called in

question by the defendant. The order of remitting the matter back to the

trial court has been passed only on the ground that the trial court, after

settling two additional issues i.e issue no.7(a) and 7(b), failed to grant

opportunity to the parties to lead evidence. The additional issues read as

under:-

"7-A Whether the suit is filed on the basis of valid power of attorney executed by plaintiff? OPD.

7-B Whether the suit is not maintainable in the present form? OPD."

2. Learned counsel representing the appellant submits that the

First Appellate Court should have permitted the parties to lead evidence

on the additional issues or sought report from the trial court while

directing the trial court to record evidence on the additional issues and

send report.

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3. Per contra, the learned counsel representing the respondents

submits that the aforesaid two issues do not arise in the present case.

4. This Court has considered the submissions made by the

learned counsel representing the parties.

5. As per Order XLI Rule 23 and Rule 23-A of the Code of

Civil Procedure, 1908 (hereinafter referred to as 'CPC'), the First

Appellate Court can remit the matter back to the lower court only in two

eventualities. Under Order XLI Rule 23 CPC, the appellate court can

remit the matter back to the lower court if the impugned judgment was

passed on a preliminary point, which is reversed by the appellate court.

This provision is not applicable in the present case. Under Order XLI

Rule 23A CPC, the appellate court can remit the matter back to the

lower court only if the findings of the lower court are set aside or re-trial

is considered necessary by the appellate court. In this case, the

impugned judgment does not fulfil those essential parameters as there is

no other provision that permits the appellate court to remit the matter

back to the lower court on any other ground. The scope of Order XLI

Rule 23 and Rule 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

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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 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."

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6. In view of the detailed observations made by the Supreme

Court, no further elaboration is required.

7. Keeping in view the aforesaid position, the impugned order

is set aside while requesting the First Appellate Court to proceed with

the matter in accordance with law. The First Appellate Court may

permit the parties to produce evidence or seek report from the trial court

under Order XLI Rule 25 CPC.

8. With these observations, the present appeal is allowed. The

parties through their learned counsel are directed to appear before the

First Appellate Court, on 31.07.2024.

9. All the pending miscellaneous applications, if any, are also

disposed of.

05.07.2024                                      (ANIL KSHETARPAL)
rekha                                                 JUDGE
Whether speaking/reasoned :         Yes/No
Whether reportable :                Yes/No




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