[Cites 3, Cited by 0]

Telangana High Court

P. Sreekanth , Sreekanth Pannala vs Shri B. Ramesh Babu And Another on 8 April, 2026

             HIGH COURT FOR THE STATE OF TELANGANA
                         AT HYDERABAD

     THE HON'BLE SRI JUSTICE VAKITI RAMAKRISHNA REDDY

            CIVIL MISCELLANEOUS APPEAL Nos. 278 of 2022

                          Date: 08.04.2026
Between:

P. Sreekanth                                             .... Appellant
                                 AND
B. Ramesh Babu and another                            .... Respondents

JUDGMENT:

This Civil Miscellaneous Appeal is preferred under Order XLIII

Rule 1 of Code of Civil Procedure, 1908, by the Appellant, aggrieved

by the Judgment and Decree dated 21.01.2022 passed in

A.S.No.166 of 2017 (hereinafter referred to as the "impugned

Judgment on the file of the learned III Additional Chief Judge, City

Civil Court, Hyderabad (for short "the learned Appellate Court"). By

the said Impugned Judgment, the learned Appellate Court has set

aside the Judgment and Decree dated 11.04.2017 passed in O.S.

No. 1144 of 2014 on the file of the learned IV Senior Civil Judge,

City Civil Court, Hyderabad (for short "the learned Trial Court") has

remanded the suit to the learned Trial Court for fresh adjudication.

2. For the sake of convenience, the parties herein, are referred to

as per their status before the learned Trial Court.

I. BRIEF FACTS

3. The factual backdrop to the present Civil Miscellaneous

Appeal is as follows:

a) The appellant/plaintiff filed O.S. No.1144 of 2014 before the

learned IV Senior Civil Judge, City Civil Court, Hyderabad seeking

ejectment and recovery of mesne profits against the

defendants/tenants in respect of the suit schedule property, which

had been leased under a registered lease deed for the period

13.08.2007 to 12.08.2012 with a clause requiring delivery of vacant

possession upon expiry. The plaintiff issued a quit notice dated

05.11.2011, which was returned "unclaimed," and subsequently

refused the defendants' request for renewal made prior to expiry,

asserting termination and claiming damages from 13.08.2012.

However, the defendants contended that the lease contemplated a

5+5-year term and that they had exercised their option for renewal.

After further correspondence and notice in 2013 treating the

defendants as unauthorized occupants, the plaintiff instituted the

suit.

b) The learned Trial Court, upon examining evidence, decreed

the suit directing eviction, awarding damages at Rs.25,000/- per

month from 13.08.2012 and permitting further mesne profits under

Order XX Rule 12 of the Code of Civil Procedure. Aggrieved thereby,

the defendants preferred A.S. No.166 of 2017, wherein the appellate

court set aside the decree and remanded the matter to the Trial

Court for fresh consideration with a direction to frame additional

issues. Aggrieved by the impugned Judgment of remand, the

appellant approached this Court in the present Civil Miscellaneous

Appeal.

II. SUBMISSIONS OF THE PARTIES:

a) Submissions on behalf of the Appellant/Plaintiff:

4. The learned counsel for the Appellant contended that the

appellate court has erroneously exercised jurisdiction under Order

XLI Rule 23 of the Code of Civil Procedure in remanding the matter,

though the said provision applies only where the trial court disposes

of the suit on a preliminary issue. In the present case, the trial

court had framed all necessary issues, recorded both oral and

documentary evidence, and rendered a detailed judgment on merits,

including findings on validity of termination and entitlement to

damages. Therefore, the essential condition for invoking Order XLI

Rule 23 of the Code of Civil Procedure was absent, and the remand

order is legally unsustainable. It is further contended that the power

of remand cannot be exercised in a routine or mechanical manner,

particularly when the entire evidence is already available on record.

5. The appellant further submits that the appellate court ought

to have exercised its powers under Order XLI Rule 24 of the Code of

Civil Procedure, which mandates that where the evidence on record

is sufficient, the appellate court should finally decide the matter

instead of remanding it. In the present case, both parties had

adduced complete evidence, including correspondence and lease

documents, and therefore, even if additional issues were required,

the appellate court itself could have framed such issues and

adjudicate the dispute finally. Reliance was placed on the decision

of the Hon'ble Supreme Court in Zarif Ahmed (Dead) by LRs. v.

Mohd. Farooq 1, wherein it was held that remand should be resorted

to only in rare cases and not when the material on record is

sufficient to decide the case.

6. It is also contended that the appellate court failed to

appreciate the terms of the registered lease deed (Ex. A-1), which

clearly stipulated a fixed term of five years from 13.08.2007 to

12.08.2012, with a renewal clause contingent upon mutual

agreement of terms between the parties. Such a clause does not

create an automatic or concluded right of renewal in favour of the

defendants. In the absence of consensus on renewal terms, no valid

extension of lease could arise. Therefore, the finding of the trial

court regarding valid termination and unauthorized occupation was

based on proper appreciation of evidence, and the remand directing

1AIR 2015 SC 1236

framing of additional issues is wholly unwarranted and contrary to

settled legal principles.

b) Submissions on behalf of the Respondents/Defendants:

7. The learned counsel for the Respondents contends that the

order of remand passed by the appellate court is justified and does

not warrant interference, as the Trial Court failed to frame and

decide crucial issues arising from the pleadings and evidence on

record.

8. It is further submitted that a specific plea was taken that the

lease was for a period of 10 years in view of Clause 9 of the lease

deed (Ex. A-1), and not merely for 5 years, and further that the

conduct of the plaintiff, particularly issuance of Ex. B-1 letter

calling upon the defendants to deposit "future rents," clearly

indicated continuation of tenancy even after the alleged quit notice.

Despite such material evidence and specific pleadings, the trial

court did not frame any issue or render findings on these vital

aspects, including whether the defendants continued as tenants by

holding over under law. Therefore, the appellate court rightly

exercised its jurisdiction to remand the matter for fresh

consideration by framing additional issues, so as to afford both

parties an opportunity to adduce further evidence and avoid

miscarriage of justice. It is thus contended that the remand is

neither mechanical nor routine, but necessitated due to non-

consideration of material issues, and hence the same is valid in law.

III. POINT FOR CONSIDERATION:

9. Having given anxious consideration to the rival submissions

advanced on either side and upon perusal of the material available

on record, this Court finds that the point that arises for

consideration is:

"Whether the impugned Judgment of remand passed by the learned appellate court in A.S. No.166 of 2017, setting aside the judgment and decree of the Trial Court and remitting the matter for fresh disposal by directing framing of additional issues, is sustainable in law?"

IV. ANALYSIS:

10. This Court has carefully considered the rival submissions and

perused the entire material available on record. Since the appellate

Court remanded the case to the trial Court by invoking Order XLI

Rule 23 of the Code of Civil Procedure, it is appropriate to reiterate

the said provision, which is as under:

Order XLI Rule 23:

"23. Remand of case by Appellate Court.

Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may

further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand."

11. At the outset, it is to be noted that the appellate court is

empowered to remand the matter to the Trial Court under the

provisions of Order XLI Rules 23, 23-A and 24 of the Code of Civil

Procedure. Order XLI Rule 23 of the Code of Civil Procedure

contemplates remand only in a case where the trial court has

disposed of the suit on a preliminary issue and the decree is

reversed in appeal. In the present case, it is an admitted position

that the trial court has not disposed of the suit on any preliminary

issue, but has conducted a full-fledged trial, framed necessary

issues, recorded oral and documentary evidence, and rendered

findings on merits. Therefore, the invocation of Order XLI Rule 23 of

the Code of Civil Procedure by the appellate court is clearly

misconceived and unsustainable in law.

12. Further, even otherwise, the appellate court could not have

resorted to remand in a routine manner. Order XLI Rule 23-A of the

Code of Civil Procedure permits remand in cases other than those

covered under Rule 23, but such power is to be exercised sparingly

and only when the decree is reversed and a retrial is considered

necessary. Order XLI Rule 23-A of the Code of Civil Procedure is

being extracted hereunder for ready reference:

"23A. Remand in other cases:

Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23."

13. In the instant case, this Court finds that the entire evidence,

both oral and documentary, was already available on record, and

the appellate court itself was competent to reappreciate the same

and render findings on all issues arising for consideration. The mere

non-framing of certain issues or absence of specific findings on

certain aspects does not ipso facto warrant a remand, particularly

when the material necessary to adjudicate those aspects is already

on record.

14. In this context, Order XLI Rule 24 of the Code of Civil

Procedure assumes significance, which mandates that where the

evidence upon record is sufficient to enable the appellate court to

pronounce judgment, the appellate court shall finally determine the

suit notwithstanding that the judgment of the trial court has

proceeded on a different ground. Order XLI Rule 24 of the Code of

Civil Procedure reads as follows:

24. Where evidence on record sufficient Appellate Court may determine case finally:

Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgement, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.

15. The controversy in the present case pertains to interpretation

of clauses of the lease deed, validity of termination, and the effect of

subsequent correspondence between the parties, all of which are

borne out by documentary evidence already marked and proved

before the trial court. Therefore, the appellate court was under an

obligation to frame additional issues, if necessary, and empowered

to decide the appeal on merits instead of remanding the matter as

per Order XLI Rule 24 of the Code of Civil Procedure.

16. The Hon'ble Supreme Court in Zarif Ahmed (Dead)'s case

(supra) has categorically held that remand should be an exception

and not the rule, and that where the evidence on record is

sufficient, the appellate court must decide the matter finally. It was

further observed that remanding a case unnecessarily prolongs

litigation and causes avoidable delay to the parties. As the present

case squarely falls within the said principle, inasmuch as the entire

evidence was already available on record, there was no necessity to

remand the matter. The relevant paragraphs is being extracted

below:

"13. No doubt, Section 107 CPC empowers the appellate court to remand a case, but it simultaneously empowers the appellate court to take additional evidence or to require such evidence to be taken. Rule 24 Order 41 CPC provides that where evidence on record is sufficient, the appellate court may determine the case finally. It is not a healthy practice to remand a case to the trial court unless it is necessary to do so as it makes the parties to wait for the final decision of a case for the period which is avoidable. Only in rare situations, should a case be remanded e.g. when the trial court has disposed of a suit on a preliminary issue without recording evidence and giving its decision on the rest of the issues, but it is not so in the present case.

14. In P. Purushottam Reddy v. Pratap Steels Ltd. [(2002) 2 SCC 686] this Court has observed in para 11 as under: (SCC p. 695) "11. In the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary."

17. The reasons assigned by the learned appellate Court for

remand, namely, non-framing of issues relating to whether the lease

is for 10 years and whether the defendants are tenants by holding

over, do not justify remand. These aspects arise from the pleadings

and evidence already on record and could have been effectively

adjudicated by the appellate court itself. The appellate court, being

the final court of fact, is vested with wide powers under Section 107

of the Code of Civil Procedure to take additional evidence or to

require such evidence to be taken, if necessary, instead of

mechanically remitting the matter to the trial court.

18. In view of the foregoing discussion, this Court is of the

considered opinion that the impugned Judgment of remand passed