Punjab-Haryana High Court
Poonam vs Dhanpat on 20 January, 2025
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2025:PHHC:007493
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
115 SAO-29-2019 (O&M)
Date of Order:20.01.2025
POONAM
.Appellant
Versus
DHANPAT ..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Prateek Mahajan, Advocate
Mr. Daanish Mahajan, Advocate
for the appellant.
Mr. V.P.Sangwan, Advocate
for the respondent.
ANIL KSHETARPAL, JUDGE (Oral)
1. Through this second appeal, 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 trial court has failed to decide
one of the additional issue.
2. In the suit, originally the trial court culled out 9 issues.
Subsequently, vide order passed on 30.04.2014, two additional issues were
framed. Somehow, the trial court failed to record finding on a particular
issue. Only on this basis, the judgment of the trial court has been set aside.
The suit filed by the plaintiff was decreed by the trial court by an elaborate
judgment. Failure of trial court to decide one of the issues, is not a ground
or reason for the First Appellate Court to not decide the matter and remit it.
3. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paper book.
4. The enabling power of the Appellate Court to remit the matter
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back to the lower Court is regulated and governed by Order 41 Rule 23 and
23-A of the Code of Civil Procedure, 1908. While interpreting these
provisions, the Hon'ble Supreme Court in P.Purushottam Reddy and
Another v. Pratap Steels Ltd. (2002) 2 SCC 686, has 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 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 exdebito 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
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(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 rewriting
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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5. In view of the aforesaid declaration of law, the order passed by
the First Appellate Court is set aside. The first appeal is restored to its
original number.
6. Needless to observe that the First Appellate Court shall decide
the appeal uninfluenced by the impugned order or the observations made by
this court.
7. The parties through their learned counsel are directed to appear
before the First Appellate Court, on 17.02.2025.
8. All the pending miscellaneous applications, if any, are also
disposed of.
(ANIL KSHETARPAL)
JUDGE
January 20, 2025
nt
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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