Punjab-Haryana High Court
Makhan Singh vs Achhar Singh And Ors on 30 January, 2025
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2025:PHHC:013747
SAO-60-2016 (O&M)
1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
SAO-60-2016 (O&M)
Date of decision: 30.01.2025
MAKHAN SINGH ..Appellant
Versus
ACHHAR SINGH (DECEASED) THROUGH LRS AND OTHERS
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. B.S. Sangha, Advocate for the appellant.
Mr. S.S. Chatrath, Advocate with
Mr. Rudresh, Advocate for the respondents.
ANIL KSHETARPAL, J.
1. This second appeal against the First Appellate Court's order
remitting the matter back to the trial Court has been filed by defendant no.2.
2. The plaintiff filed a suit for separate possession as a co-parcener
by way of partition of the suit property.
3. The defendants contested the suit filed by the plaintiff, which was
ultimately dismissed.
4. The First Appellate Court remitted the matter back to the trial
Court on the ground that original revenue record for comparing the entries of
the excerpt report was not produced and the trial Court should call the original
revenue record for comparison and then decide the nature of the property
situated in village Lallian Khurd and also decide the validity of the gift deed
executed by Sh. Hari Singh in favour of some of the defendants.
1 of 4
Neutral Citation No:=2025:PHHC:013747
SAO-60-2016 (O&M)
5. The enabling power of the Appellate Court to remit the matter
back to the lower Court is regulated by Order 41 Rules 23 and 23A of the Code
of Civil Procedure, which has been explained 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 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 (1)
2 of 4
Neutral Citation No:=2025:PHHC:013747
SAO-60-2016 (O&M)
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."
3 of 4
Neutral Citation No:=2025:PHHC:013747
SAO-60-2016 (O&M)
6. It is evident that neither the First Appellate Court has set aside the
decree passed by the trial Court on merits nor the Court has found that the re-
trial of the case is necessary. In absence thereof, the first Appellate Court,
should have proceeded to decide the matter. Even if the original entries in the
revenue record were required to be examined, the First Appellate Court could
have called upon the parties to produce the same. It was not necessary to the
First Appellate Court to remit the matter back to the trial Court for this
purpose.
7. Keeping in view the aforesaid facts and discussion, the impugned
order passed by the First Appellate Court is set aside with a request to decide
the appeal in accordance with law.
8. The parties through their counsel are directed to appear before the
First Appellate Court on 28.02.2025.
9. The appeal is allowed.
10. All the pending miscellaneous applications, if any, are also
disposed of.
(ANIL KSHETARPAL)
JUDGE
January 30, 2025
nt
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
4 of 4
