Mohammed Shafiq vs Nizamuddin

Bela M. Trivedi, J.—With the consent of the learned counsels for the parties, the appeal is decided finally at the admission stage. The present appeal has been filed by the appellant-plaintiff challenging the order dated 13.4.09 passed by the Addl. District Judge (Fast Track) No. 5, Jaipur City, Jaipur (hereinafter referred to as ''the appellate court'') in Civil Regular Appeal No. 2/08, whereby the appellate court has allowed the appeal by setting aside the judgment and decree dated 26.4.08 passed Addl. Civil Judge (J.D.) & Judicial Magistrate No. 1, Jaipur (hereinafter referred to as ''the trial court'') in Civil Suit No. 70/07 (460/02) and remanded the case to the trial court for deciding it afresh, on the additional issues framed by the appellate court.

In the instant case, it appears that the appellant had filed the suit seeking eviction of the respondent-defendant from the suit premises, which suit was decreed by the trial court against which the respondent had preferred an appeal. The appellate court framed the additional two issues and remanded the case to the trial court directing it to decide it afresh, vide the impugned order, which is under challenge before this court.

It has been sought to be submitted by the learned counsel Mr. Anees Khan for the appellant that the appellate court has wrongly remanded the case to the trial court, inasmuch as the appellate court had neither reversed the decree passed by the trial court nor found the retrial necessary as contemplated under Order XLI Rule 23-A. According to him, the appellate court had also not exercised the powers under Rule 25 and 27 of the said Order and, therefore, the impugned order deserves to be set aside.

However, the learned counsel Mr. Usman Khan for the respondent, supporting the impugned order passed by the appellate court submitted that the trial court had omitted to frame the two issues, now framed by the appellate court on which additional evidence was required to be led and therefore the trial court is directed to decide the suit afresh in the light of the said issues.

At the outset it is required to be stated that the Apex Court in case of P. Purushottam Reddy and Another Vs. Pratap Steels Ltd., has laid down the scope of remand by the appellate court. It has been held in para 10 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 23-A 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 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.

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 23-A 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. 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.

In the instant case the appellate court has neither reversed the findings of the trial court as contemplated under Rule 23A, nor found it necessary to call for the additional evidence on the additional issues, as contemplated under Rule 25 of the said Order XLI of CPC. The appellate court by the impugned order has directed the trial court to record additional evidence on the additional issues framed by it and to decide the suit afresh, which is not permissible under the provisions contained in Order XLI and in the light of the above refereed decision of the Apex Court. In that view of the matter, it is required to be held that the impugned order passed by the appellate court suffers from illegality and infirmity which deserves to be set aside. In view of the position stated above, the impugned order passed by the appellate court is set aside. It is clarified that this court has not expressed any opinion on the merits of the case. The appellate court is therefore directed to decide the appeal on merits and in accordance with law. The appeal stands allowed accordingly.