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2013 DIGILAW 1392 (RAJ)

Subhash Chand v. Nanag Ram

2013-08-01

BELA M.TRIVEDI

body2013
JUDGMENT 1. - The present appeal has been filed by the appellant-defendant under Order 43, Rule 1 (u) of CPC challenging the order dated 28.5.04 passed by the learned Addl. District & Sessions Judge No. 3, Jaipur City, Jaipur (hereinafter referred to as 'the appellate court') in Civil Regular Appeal No. 214/02, whereby the appellate court has set aside the judgment and decree dated 1.6.02 passed by the Addl. Civil Judge (SD) No. 1, Jaipur, (hereinafter referred to as' the trial court') in Civil Suit No. 121/93 and remanded the case to the trial court for deciding the suit afresh after giving the opportunity of hearing to both the sides. 2. The facts in nutshell giving rise to the present appeal are that the respondent-plaintiff had filed the suit seeking right of pre-emption to purchase the suit property, against the appellant-defendant. The trial court after framing the issues from the pleadings of the parties and taking into consideration the submissions made by the learned counsels for the parties, dismissed the suit vide the judgment and decree dated 1.6.02. Being aggrieved by the same, the respondent-plaintiff had preferred the appeal, which has been allowed by the appellate vide the impugned order. 3. It has been submitted by the learned counsel Mr. Manish Sharma for the appellant that the suit having not been decided on preliminary issues, the provisions contained in Order 41, Rule 23A of CPC will be applicable, and the appellate court without reversing the findings recorded by the trial court and without observing as to whether the retrial was necessary or not, had remanded the case to the trial court, which was not permissible. 4. The learned counsel Mr. Sudesh Bansal for the respondent has also fairly submitted that the appellate court could not have remanded the case under Order 41, Rule 23A of CPC, however he submitted that since the appellate court has not decided the appeal on merits, the same be directed to be decided on merits. 5. In view of the submissions made by the learned counsels for the parties, it would be necessary to reproduce the scope of remand under Order 41 as laid down by the Apex Court in case of P. Purushottam Reddy & Anr. v. Pratap Steels Ltd., (2002) 2 SCC 686 . It has been held in para 10 as under:- "10. In view of the submissions made by the learned counsels for the parties, it would be necessary to reproduce the scope of remand under Order 41 as laid down by the Apex Court in case of P. Purushottam Reddy & Anr. v. Pratap Steels Ltd., (2002) 2 SCC 686 . It has been held in para 10 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 23-A in Order 41 of the Code of Civil Procedure by the 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 inasmuch 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 therefor of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before the 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 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 23-A 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 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rule 23 and 23-A. 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 Manilal Nanavati v. Sushila Mahendra Nanavati (AIR 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 23-A. 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 41, Rule 31 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 23-A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided." 6. In view of the above stated legal position, it clearly transpires that the powers of remand could be exercised by the appellate court either under Rule 23 or under Rule 23A Order 41. While the provision under Rule 23 could be invoked when the suit is disposed of by the trial court on a preliminary issue, Rule 23-A could be invoked when the suit is disposed of otherwise than on preliminary point and when the decree is reversed in appeal, and the retrial is found necessary by the appellate court. While the provision under Rule 23 could be invoked when the suit is disposed of by the trial court on a preliminary issue, Rule 23-A could be invoked when the suit is disposed of otherwise than on preliminary point and when the decree is reversed in appeal, and the retrial is found necessary by the appellate court. In the instant case, from the submissions made by the learned counsels for the parties, and from the impugned order passed by the appellate court, it transpires that the appellate court has remanded the case to the trial court, without reversing the decree passed by the trial court and without finding the retrial necessary. Admittedly, the suit having not been decided by the trial court on a preliminary issue, the provision contained in Rule 23 did not apply. So far as the Rule 23A is concerned, it reads as under:- "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." 7. The said provision contained in Rule 23-A, Order 41 could have been invoked by the appellate court only when the decree was reversed in appeal and the retrial was considered necessary. In the instant case, the appellate court has neither reversed the decree nor has found re-trial necessary, and therefore the remand of the case was not made by the appellate court in consonance of Rule 23-A, Order XLI. 8. So far as the Rule 25 is concerned, it cannot be gainsaid that the appellate court has power to refer the issues that may be framed by it, to the trial court for taking the additional evidence thereon and in such case, the trial court has to proceed to try such issues and return the evidence to the appellate court together with its findings thereon and the reasons therefor. However, in the instant case, the appellate court has also failed to frame any issue which according to the appellate court, the trial court had failed to frame, nor has it called for the additional evidence from the trial court on such issue, and hence Rule 25 also had no application. 9. However, in the instant case, the appellate court has also failed to frame any issue which according to the appellate court, the trial court had failed to frame, nor has it called for the additional evidence from the trial court on such issue, and hence Rule 25 also had no application. 9. So far as the facts of the present case are concerned, the appellate court has remanded the case to the trial court on the ground that the trial court had not discussed the evidence of two witnesses examined by the respondent-plaintiff. It is very unfortunate that the appellate court ignoring the settled legal position and ignoring the provisions contained in Order 41 of CPC for remand of the case, has remanded the matter to the trial court on such extraneous ground. As observed by the Apex Court in case of P. Purshottam Reddy (supra), an unwanted order of remand gives the litigation an undeserved lease of life, and therefore, must be avoided. The appellate court has neither reversed the findings on the issues recorded by the trial court nor has reversed the decree of the trial court, nor has found the retrial necessary as contemplated under Order 41, Rule 23A of CPC. Under the circumstances, the impugned order suffers from gross illegality and infirmity, which deserves to be set aside. 10. In that view of the matter the impugned order dated 28.5.04 passed by the appellate court deserves to be set aside and is accordingly set aside. The appellate court is directed to decide the appeal on merits and in accordance with law taking into consideration the record of the case. The record of the appellate court be sent back immediately. The appeal stands allowed accordingly. 11. The office is directed to circulate the copy of this order to all the appellate courts.Appeal Allowed. *******