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2013 DIGILAW 418 (CAL)

S. Laxmi v. M. Ganapathi @ Chinna

2013-07-05

MURARI PRASAD SHRIVASTAVA, SUBHRO KAMAL MUKHERJEE

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Judgment :- Subhro Kamal Mukherjee, J. This is an appeal against an order of remand. The learned Civil Judge (Junior Division), First Court at Port Blair, District South Andaman, decreed the Other Suit No.4 of 2003 by the judgment and decree dated September 22, 2009. The defendant, being aggrieved by and dissatisfied with such decree, preferred Other Appeal No. 2 of 2010 in the Court of learned District Judge. Eventually, the appeal was transferred to the Court of the learned Additional District Judge. The appeal was re-numbered as Other Appeal No. 32 of 2010. By the impugned judgment and order of remand the learned Additional District Judge allowed the appeal on contest and set aside the judgment and decree dated September 22, 2009 passed by the learned Trial Court in the said suit. The suit was sent back on remand with a direction to the Trial Court to dispose of the suit by writing a fresh judgment after giving opportunities of hearing to both sides. Although this is an appeal against an order of remand, curiously, this appeal is classified as an appeal from appellate decree. The Code of Civil Procedure provides for appeals from original appellate decrees. It, also, provides for appeals against orders of remand. The Code of Civil Procedure provides for appeals against orders of remand under three circumstances as contemplated in rules 23, 23-A and 25 of Order 43 of the Code of Civil Procedure. Under rule 23 if a suit is decreed on 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. The Trial Court shall, thereafter, re-admit the suit under its original number and proceed to determine the suit. Evidence, if any, recorded during the original trial shall, subject to all just exceptions, be evidence during the Trial after remand. The rule 23-A was inserted in the Code of Civil Procedure by the amending Act of 1976 with effect from February 01, 1977. It provides that 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. It provides that 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. The rule 25 contemplates that when the trial court passes a decree, but omitted to frame or try any issue or determine any questions of fact, which appears to the appellate court essential to the right decision of the suit upon the merits, the appellate court may, if necessary, frame issues, and refer the same for trial to the court from whose decree the appeal is preferred, and in such case shall direct such court to take the additional evidence required. In the case in hand, the trial court had disposed of the case on merits and not on a preliminary issue. The lower appellate court set aside the judgment and decree of the trial court and directed the trial court to decide the suit afresh after giving opportunity of hearing to both sides. Such order has been passed under rule 23-A of Order 41 of the Code of Civil Procedure. Mrs.Anjili Nag, learned advocate, for the appellant insists that the appeal should be classified as an appeal from appellate decree as the lower appellate court prepared a decree. We are unable to accept such contentions of Mrs.Nag. Order 43, rule 1 clause (u) of the Code of Civil Procedure provides that an appeal shall lie from an order under rule 23 or 23-A of Order 41 remanding the case, where an appeal would lie from the decree of the appellate court. Thus, it is obvious that an appeal shall lie from an order of remand only in those cases in which an appeal would lie against the decree if the appellate court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The Supreme Court of India in Narayan versus Kumaran and others reported in 2004 (4) Supreme Court Cases 26 held that it was quite safe to adopt that an appeal under order 43, rule 1 clause (u) should be heard only on the grounds enumerated in section 100 of the Code of Civil Procedure. The Supreme Court of India in Narayan versus Kumaran and others reported in 2004 (4) Supreme Court Cases 26 held that it was quite safe to adopt that an appeal under order 43, rule 1 clause (u) should be heard only on the grounds enumerated in section 100 of the Code of Civil Procedure. It was, further, held that the appellant under an appeal against an order of remand under clause (u) of rule 1 of order 43 of the Code of Civil Procedure was not entitled to agitate questions of facts. Therefore, the learned advocate for the appellant is directed to classify this appeal as an appeal from the original order. The memorandum of appeal is very unhappily drafted. Although the learned Additional District Judge at Port Blair decided the Other Appeal No.32 of 2010, in the preamble of the memorandum of appeal, it is mentioned that the order of remand was passed by the learned District Judge. A memorandum of appeal to this Court against the decree or order passed in appeal by any court subordinate to it shall be accompanied by copies of the judgment and the decree or the order of both the Courts below as contemplated under rule 6 of Chapter V of the Rules of the Appellate Side of this Court. Under rule 4 of the Chapter V of the said rules, in the cases of (a) appeals from orders of the lower appellate courts remanding cases for re-trial, and (b) appeals from the orders of the lower courts made on remand by the High Court, the learned advocate on record shall add at the foot of such memorandum of appeal note as prescribed under the said rules. It is incumbent on the part of the Stamp Reporter when a memorandum of appeal is not in form and/or is not accompanied by necessary copies of paper, to draw the attention of the learned Registrar and the learned Registrar will allow time within which such memorandum must be amended and all necessary papers must be filed. In default, he shall lay the same before the Division Bench taking lawazima matters. Put up this matter on Thursday next under the heading ‘for orders’ with the revised report of the Stamp Reporter. Murari Prasad Shrivastava, J. I agree.