Punjab-Haryana High Court
Lakhbir Singh vs Sukhdev Singh And Another on 24 March, 2025
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2025:PHHC:040227
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SAO-35-2022(O&M)
131 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
SAO-35-2022(O&M)
Date of decision:24.03.2025
Lakhbir Singh
..Appellant
Versus
Sukhdev Singh and another
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. H.S.Batth, Advocate for the appellant
Mr. C.L.Verma, Advocate for respondent no.1
ANIL KSHETARPAL, J. (Oral)
1. Defendant no.2 assails the correctness of the First Appellate
Court's order remitting the matter back to the trial court for fresh decision.
The First Appellate Court has remitted the matter back to the lower court
only because an application under Order XLI Rule 27 of the Code of Civil
Procedure, 1908 (hereinafter referred to as 'CPC') filed by the plaintiff was
allowed.
2. The scope and ambit of Order XLI Rule 23A 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
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Neutral Citation No:=2025:PHHC:040227
SAO-35-2022(O&M)
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 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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SAO-35-2022(O&M)
3. It is evident on a careful reading of Order XLI Rule 23 A CPC
that the Appellate Court can remit the matter back to the lower court only
after setting aside the lower court's judgment on merits and on forming an
opinion that re-trial of the case is necessary. In this case, the First Appellate
Court has not recorded any such finding. It may be noted here that this
Court is not interfering in the order permitting the plaintiff to lead additional
evidence, however, this cannot be the only ground to remit the matter back.
Hence, the order of the First Appellate Court remitting the matter back to the
lower court is set aside to that extent only.
4. With these observations, the appeal is allowed. The first appeal
is restored to its original number. The parties through their learned counsels
are directed to appear before the First Appellate Court on 24.04.2025.
5. All the pending miscellaneous applications, if any, are also
disposed of.
(ANIL KSHETARPAL)
24.03.2025 JUDGE
rekha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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