Punjab-Haryana High Court
Rattan Singh vs Kuldeep Singh And Ors on 1 April, 2025
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2025:PHHC:043312
SAO-39-2022 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
125
SAO-39-2022 (O&M)
Date of decision: 01.04.2025
RATTAN SINGH ..Appellant
Versus
KULDEEP SINGH AND ORS. ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Rakesh Kumar, Advocate
Mr. Tushar Sharma, Advocate
for the appellant.
Mr. A.S. Khinda, Advocate
for respondent No.3.
ANIL KSHETARPAL, J(Oral)
1. The plaintiff assails the correctness of First Appellate Court's
order remitting the matter back to the trial Court for fresh decision after
framing additional issues.
2. The plaintiff filed a suit for grant of decree of declaration that he
is owner in possession of 48 kanal land and the sale deeds dated 04.11.1992,
05.11.1992, 11.09.2003 and 03.09.2003 are illegal, null and void. The
defendants contested the suit, which was decreed on 16.07.2018. The
defendants filed the first appeal. The First Appellate Court found that the
following two issues were required to be framed:-
"Issue No.2A- Whether the plaintiff never issued power of
attorney dated 8.04.1986 in favour of defendant no.1?
OPP
Issue No.2B- Whether defendant no.3 is bonafide
purchaser of the suit land in good faith? OPD"
3. Only on that basis, the First Appellate Court remitted the matter
back to the trial Court.
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4. The enabling power of the Appellate Court to remit the matter
back to the lower Court is regulated by Order XLI Rule 23 and 23A of the
Code of Civil Procedure, 1908, which 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 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
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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. As per Order XLI Rule 23 A of Code of Civil Procedure, 1908,
the Appellate Court can remit the matter back to the Lower Court only after
setting aside the lower Court's judgment on merit while forming an opinion
that retrial of the case is necessary. The Appellate Court is required to fulfill
both the conditions, which are sine qua non before remitting the matter back
to the lower Court.
6. In this case, the First Appellate Court has neither set aside the
judgment of the trial Court on merits nor formed opinion that retrial of the
case is necessary. The First Appellate Court is the last Court of fact and law
both. The First Appellate Court has power to permit the parties to lead
evidence or it can seek report from the lower Court, however, Order XLI
Rule 25 of the Code of Civil Procedure, 1908, does not provide that the First
Appellate Court will remit the matter back to the trial Court only on this
ground.
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7. Consequently, the impugned order passed by the First Appellate
Court is set aside to the extent that it remitted the matter back to the lower
Court.
8. It shall be open to the First Appellate Court to either permit the
parties to record evidence or direct the trial Court to send a report after
permitting the parties to lead evidence.
9. With these observations, the appeal is allowed.
10. The impugned order passed by the First Appellate Court to that
extent is set aside while restoring the first appeal to its original number.
11. The parties through their learned counsel are directed to appear
before the First Appellate Court on 30.04.2025.
12. All the pending miscellaneous applications, if any, are also
disposed of.
April 01st, 2025 (ANIL KSHETARPAL)
Ayub JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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