Nand Lal and Others vs Purshottam and Others

Mrs. Mohini Kapur, J.—In this revision petition an important point of law is involved which is whether an appellate court has power under Order 41 Rules 23, 23-A and 25 C.P.C., to pass an order remanding a miscellaneous application for fresh decision. In other words it is to be seen whether Section 141 CPC can be invoked to make the power of remand applicable to matters, arising in the course of a regular Suit.

The facts of the case may be stated briefly at this stage. The non-petitioner plaintiffs filed a suit for permanent injunction in the court of Munsiff Magistrate, Fatehpur. Along with the plaint, they also filed an application under Order 39 Rule 1 and 2 CPC seeking a relief that the applicants be restrained from obstructing them from the use of chaubara and other premises. It may also be mentioned that the parties to the suit are related to each other and there was some dispute as to whether the property in dispute was ancestral property or individual property and who were the persons using it. The learned Munsiff, appointed a commissioner for the inspection of the premises. The injunction application was heard by the trial court and by order dated 25-2-1985, the interim injunction application of the non-petitioners was dismissed. Against this order an appeal was preferred by them before the District Judge, which came to be decided by the Addl. District Judge, Sikar, by his order dated 12-K-86. The learned Addl. District Judge, accepted the appeal and set aside the order of the trial court and remanded the application with direction to re-hear the same and take into consideration the complete evidence of the parties, in an appropriate manner, and if necessary to go to the site and then re decide the matter. In the meanwhile, both the parties were directed to maintain status quo.

The defendant petitioners feeling aggrieved against this order, have preferred this revision petition. Without going into the facts of the case, at this stage, it is first of all to be seen whether in a misc. appeal it is open to the appellate court to pass an order of remand, directing the trial court to rehear the matter and give fresh decision.

Section 107 CPC lays down the powers of the appellate court while disposing a suit and the powers are (a) to determine a case finally (b) to remand a case (c) to frame issues and refer them for trial (d) to take additional evidence or to require such evidence to be taken.

The circumstances and grounds on which a case can be remanded by the appellate-court are provided in Order41 Rules 23, 23-A and 25 CPC. They read as under:-Order 41, Rule 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, with directions to readmit 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".

Rule 23-A. "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"

Rule 25. "Where Appellate Court may frame issues and refer them for trial to court whose decree appealed from" Where the court from whose decree the appeal is preferred has omitted to frame or try any issues, or to determine any question 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, and such court shall proceed to try such issues and shall return the evidence to the Appellate Court together with its findings thereon and the reasons there for (within such time as may be fixed by the Appellate Court or extended by it from time ".

Rule 24 of Order 41 CPC can also be said to be relevant the same may also be reproduced : --

Rule 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 judgment, 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."

Section 141 CPC provides that the procedure provided in the Civil P.C. in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. It is to be seen whether by virtue of this provision the power of remand can be said to be available to the appellate court in an appeal arising out of a miscellaneous order. Normally, it can be said that the procedure provided for the suits can be made applicable to other proceedings and the only limitation is as far as it can be made applicable. It will have to be seen whether the power of remand which the appellate court has while deciding a regular appeal against a judgment and decree of the trial court can be made applicable to other matter which arise during the course of a suit.

Learned counsel for the petitioners has mainly contended that material was available on record and it was open to the appellate court to examine that material and arrive at a finding as to whether the order passed by the trial court was proper or not According to him the appellate court could have interfered with the order passed by the trial court if in its opinion the order was illegal, perverse or capricious and required interference, as has been held in the case of Smt. Vimla Devi Vs. Jang Bahadur, In the present case the appellate court is said to have exercised the powers of remand without there being any necessity for it as can arise under Order 41 Rules 23, 23-A and 25 CPC and the interference of the appellate court is without adequate basis.

On the other hand, learned counsel for the non-petitioners has contended that the trial court while deciding the injunction application has not referred to all the material which has been placed on record and an order can be passed directing the trial court to take into consideration all the material which is available on record at the time of deciding the application. It has also been contended that a revision petition lies only in the circumstances which have been mentioned in Section 115 CPC and the conditions mentioned in the proviso have also to be fulfilled and in the present case the lower appellate court has directed the parties to maintain status quo till such time as the trial court decides the matter again, and a direction to maintain the status-quo cannot be said to occasion failure of justice or cause irreparable injury to the petitioners. According to him ''trial'' as is mentioned in Rule 23A of Order 41 does not confine to a trial of a regular suit but also the disposal of an application for grant of temporary injunction after due consideration of the material available on record.

I have considered the contentions raised on behalf of both the sides and shall also refer to the decisions which have been cited by them in support of their contentions. It may be said that Order 41, Rule 23 CPC is a provision which cannot be made applicable to an appeal against the order on a misc. application in a suit as it is applicable only to a cause where a suit has been disposed on a preliminary point and the decision on it is reversed in appeal Similarly, Rule 25 of Order 41 also cannot be made applicable to misc. proceedings as it refers to framing of additional issue. It remains to be seen whether under Order 41 Rule 23-A CPC the appellate court can reverse an order on an injunction application and direct for a re-trial.

The word ''trial'' has been defined by the Websters in New International Dictionary as the formal examination of the matter in issue in a cause before a competent tribunal for the purpose of determining such issues; the mode of determining a question of fact in a court of law.

By referring to this definition it is to be seen whether the act of the court while deciding an application for grant of temporary injunction can be said to be covered by the expression, ''trial'' so as to say that the appellate court can direct the trial court to hold a retrial and give a fresh decision, while disposing an application under Order 29 Rules 1 and 2 CPC, the court has to look into the documents which have been produced by the parties and look into the affidavits which have been filed and if necessary the deponents can be cross-examined on their affidavits, and site can be inspected for the purpose of having a clear idea of the situation. Even after doing all this exercise, the court does not give a decision on the question in dispute so as to say that the matter has been decided after trial but it only arrives at a conclusion which may at best be said to be a prima facie case. While disposing an application for temporary injunction the court does not determine a question of fact so as to say that the procedure adopted in deciding the same can be called a trial which includes the formal examination of the matter in issue. Trial or re-trial of a matter is something more than a mere order which is to govern the parties during the pendency of the suit. The trial of a suit commences with the presentation of the plaint and comes to an end with a judgment and decree passed by the court. In between this the court has to decide various supplementary matters and it cannot be said that the decision on each such matter can be said to be a trial, within the main trial, so as to say that the disposal of an application for grant of temporary injunction also constitutes a trial of the suit By virtue of Section 141 CPC the procedure prescribed for suits can be made applicable to other proceedings, but only so far as they can be said to be applicable. When there is no trial then the question of re-trial does not arise so as to say that the power of remand can be made applicable to such proceedings. Section 141 CPC cannot be invoked when the procedure is not applicable. In the present circumstances, re-examining of the matter only to see whether an application for temporary injunction should be granted or not cannot be said to be a re-trial of the matter so as to attract Order 41 Rule 23A CPC- The only power under which an appellate court can remand a matter while disposing a misc. matter can be u/s 151 CPC, This power has to be exercised in exceptional circumstance because of the very nature of this provision and because no procedure has been prescribed for the exercise of suit (such?) powers. In the case of Vijai Raj v. Bhanwari Devi 1969 WLN 287, it has been held that the appellate court had no jurisdiction to remand a case u/s 151 CPC as this is to be used very sparingly. It was observed that appellate court should have considered the entire oral and documentary evidence and given its own findings, the court should not remand the case to the lower court for writing a more satisfactory judgment.

Prior to the introduction of Rule 23-A in Order 41 the power of remand by the appellate court was confined to the provisions of Rule 23, v. where the suit is disposed of on a preliminary point and the decree is reversed in appeal. It was only in that circumstance that the appellate court could remand the matter. When the order of remand was outside Order 41 Rule 23 then it has been held in the case of Balla Mallayya Vs. Peddi Veerayya and Others, that the court can remand the case u/s 151 CPC and no appeal lies against the order made in exercise of this power. It has also been held that the revision petition does not lie because it is not an error of jurisdiction and further that such an order of remand can be challenged in the second appeal. In the case of Chandmal and Another Vs. Ramakishan and Another, it has been held that an order of remand under inherent powers cannot be challenged in a revision petition as it cannot be said to be an order against which no appeal lies because u/s 105 CPC, the ground of challenging the order of remand is available while preferring a second appeal. In the case of Mal Chand and Others Vs. Basant Prakash, it has been held that a revision does not lie against an order of remand under Order 41, Rule23 CPC as an appeal is provided against such order. All these cases cited above are castes in which the trial court had decided the suit finally and a decree had been passed and the appellate court had remanded the case in an appeal against the decree. The remand in such a case can be challenged in a second appeal and none of these cases relate to an order of remand passed in an appeal against the order of the trial court which is not a decree, In the present case, the order is not such an order which can be said to be open to challenge in a second appeal. Here the order of remand passed by the lower appellate court is such an order which cannot be challenged in any further proceedings or appeal and as such if he is able to satisfy the other conditions mentioned in Section 115 CPC then this court can interfere with the order passed by the lower-appellate court.

The only case in which the trial court had not passed a decree and the appellate court remanded the matter is the case of AIR 1948 305 (Oudh) The lower court passed an order that it had no jurisdiction to trower-appellate court that the plaint be returned for presentation before a proper court. This order was re ve reed by the appellate court and it remanded the case for trial according to law. It was held that the remand was not one under Order 41 Rule 23 CPC and as such an appeal under Order 43 Rule l(u) did not lie and at the same time a revision petition u/s 115 CPC was not maintainable as it was an interlocutory order and did not amount to a case decided. It shows that the appellate-court had remanded the matter under its inherent power and not under the specific provisions of remand under Order 41 Rules 23 and 25 CPC. On basis of this decision, the revision in the present case cannot be said to be not maintainable because of the change in the expression ''case decided'' by the amendment made in 1976.

In my view as discussed above the appellate court does not have power in misc. proceedings to passan order of remand under Order 41, Rules 23, 23A and 25 CPC but can exercise this power only u/s 151 CPC. When the exercise of power is u/s 151 CPC then this court can, in a revision examine whether the exercise of jurisdiction is illegal or with material irregularity. If the petitioners are able to satisfy on this point, it can be said that their case will be covered by Clause (a) of the proviso because if the order had been made in their favour then it would have disposed the proceedings about grant of temporary injunction finally and as such they have a cause of complaint.

The lower-appellate court has observed in this case that the trial court while disposing of the application has not referred to certain documents which had been produced on behalf of the plaintiff non-petitioners which the lower court should do now. In other words he has simply ordered that the trial court should pass another order after analysing the matter available on record and commenting on it in a better manner. Such a direction by the court below is illegal exercise of jurisdiction because this exercise could have been done by the appellate-court itself. Even if the provisions of Order41 Rules 23, 23A and 25 CPC are not specifically applicable to misc. proceedings then too the grounds on which a matter can be remanded by the appellate court have to be kept in consideration while passing such an order, but in this case the lower appellate court has not exercised this power in accordance with the principles which govern the matter and as such it is illegal exercise of jurisdiction.

In the result, this revision petition is accepted and the order dated 25-2-1985, passed by the lower-appellate court is set aside. He is directed to decide the appeal after taking into consideration all the material which is available on record. The parties are directed to appear before the learned Addl. Distt Judge, Sikar, on 8th May, 1987. Till then the panics shall maintain status quo.