Deva Ram and Others vs Mohd. Iliyas

Bela M. Trivedi, J.—Both the appeals arise out of the common order dated 18/12/1998 passed by the Additional District Judge No. 1, Sikar (hereinafter referred to as ''the Appellate Court'') in Civil Regular Appeal Nos. 34/1995 and 35/1995, whereby the Appellate Court has set aside judgments and the decrees dated 28/01/1995 passed in Civil Suit No. 78 of 1987(199 of 1984) and in Civil Suit No. 32 of 1989 (11 of 1985), and further remanded both the suits to the Trial Court for deciding afresh after consolidating the same. In the instant case, it appears that the respondent-plaintiff was the landlord of the two shops in question. He had filed the suit being No. 78 of 1987 (199 of 1984) against the original tenant Devaram, who was the original appellant in Civil Misc. Appeal No. 270 of 1999, and had filed the Civil Suit No. 32 of 1989 (11 of 1985) against the original tenant Hemraj, who is the appellant in the Civil Misc. Appeal No. 269 of 1999. It further appears that both the suits of the respondents were dismissed by the Trial Court by two separate judgments and decrees passed on 28/01/1995. The respondent having filed two separate appeals being Nos. 34 of 1995 and 35 of 1995, the Appellate Court passed the impugned common order allowing both the said appeals. Being aggrieved by the said order, the present appeals have been filed by the appellants-tenants.

The learned counsel Mr. Jitendra Mishra for the appellants in both the cases has submitted that the Appellate Court has remanded the cases to the Trial Court on the ground that both the suits should have been consolidated, and fresh issues, with regard to the bonafide necessity of the respondent-landlord, should be framed, which was not the case pleaded by either of the parties. He also submitted that the Appellate Court could not have remanded both the cases to the Trial Court without reversing the findings already recorded by the Trial Court, and without finding retrial necessary as contemplated under Order XLI Rule 23A of CPC.

However, the learned counsel Ms. Gayatri Rathore for the respondent has submitted that the impugned order passed by the Appellate Court being just and proper, this Court should not interfere with the same.

At the outset, it is required to be stated that the powers of Appellate Court to remand the case are contained in Order XLI Rule 23A, when the suit is not disposed of on preliminary issue. A very pertinent observations made by the Apex Court in case of P. Purushottam Reddy and Another Vs. Pratap Steels Ltd., with regard to the scope of remand by the Appellate Court are required to be reproduced, as under:-

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 CPC 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 u/s 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 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 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.

In view of the above stated legal position, the powers of remand could be exercised by the appellate court either under Rule 23 or under Rule 23A of Order XLI. While Rule 23 could be exercised 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 to 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 findings recorded by the trial court on the issues framed by the trial court and without finding the retrial necessary.

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.

So far as facts of the present case are concerned, the Appellate Court has neither reversed the decrees passed by the Trial Court in the suit, nor found the retrial necessary as contemplated under Rule 23A Order XLI, nor has called for finding from the Trial Court after framing the issue, as contemplated under Rule 25 of Order XLI.

Under the circumstances, the impugned order passed by the Trial Court remanding the cases to the Trial Court does not appear to be inconsonance with the provisions contained in Order XLI. Unless the case for remand is made out by the parties as per the provisions contained in Order XLI, the Appellate Court could not have and should not have remanded the case to the Trial Court. The Court, therefore, is of the opinion that the impugned order passed by the Appellate Court suffers from gross illegality or infirmity, which deserves to be set aside. In that view of the matter, the impugned order dated 18/12/1998 passed the Appellate Court is set aside. The Appellate Court is directed to decide the Civil Regular Appeal Nos. 34 of 1995 and 35 of 1995 afresh, and in accordance with law. Both the present appeals hereby stand allowed. Both the parties are directed to remain present before the Appellate Court on 02/01/2014.