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Judgment
B. Rajendran, J.—This appeal has been filed by the appellant against the order of remand dated 07.07.2006 in A.S. No. 7 of 2005 on the
file of the Subordinate Judge, Thiruvarur.
The learned Counsel for the plaintiff appellant contended that the suit was originally filed by the plaintiff/appellant for the relief of bare injunction
and subsequently it was amended into one of declaration and permanent injunction. Both the first defendant and the second defendant have filed
their written statement, evidence was let in both sides. At that stage, the first defendant/first respondent herein was set exparte. The trial court,
heard the matter at length and passed orders on merits decreeing the suit in favour of the plaintiff/appellant herein. Aggrieved by the same, the first
defendant, who was originally set exparte in the suit, preferred A.S. No. 7 of 2005 before the first appellate Court. The first Appellate Court
without going into the merits of the case and without giving any finding in so far as the decree passed by the trial court, only based on the
submission of the first defendant/first respondent herein that he was set exparte before the court below, set aside the decree and judgment passed
by the court below and remanded the matter to the trial court for a de-novo trial which is legally impermissible.
The learned Counsel for the first defendant/first respondent herein contended that the suit was filed for declaration and injunction in which the
first defendant, after filing the written statement, was set exparte. Thereafter, the first appellate Court, in order to afford an opportunity to the first
defendant, has rightly remanded the matter back to the trial court for fresh consideration and prayed for dismissal of this appeal.
Heard both sides. The short point for consideration in this appeal is whether the order of remand passed by the first appellate Court is valid and
is in accordance with law.
On perusal of the records, it is seen that the suit was originally filed in the year 1998 for a bare injunction. The first defendant in the suit also filed
his written statement. The defence put forward by the first defendant was that he is a tenant under the second respondent/municipality. Since the
first respondent claimed leasehold right from the municipality, the second respondent/municipality was impleaded as one of the defendants in the
suit and the municipality also filed their written statement. Subsequently in the year 2001, an amendment application was filed and the same was
allowed on 04.05.2002 by the trial court. Thereafter, evidence was let in both sides and thereafter, the first respondent herein was set exparte by
the trial court and an exparte order also passed against him. Thereafter, the first respondent did not participate in the proceedings of the case.
Ultimately, trial was conducted in the year 2003 wheein the second respondent/municipality alone participated, evidence was let in and documents
were produced by the municipality. The trial court also framed necessary issues and additional issues on the basis of the written statement filed by
the first defendant as to whether the lease said to have been granted by the municipality in favour of the first defendant is valid. Ultimately, the trial
court decreed the suit declaring that the plaintiff/appellant is the owner of the suit property and granted an injunction as prayed for.
After the suit was decreed, the first respondent, who remained exparte in the suit, preferred an appeal before the first appellate Court. It is
evident that the first respondent is aware of the decreeing of the suit, but he did not participate in the proceedings. However, the first respondent
did not file an application under Order 9 Rule 13 of CPC to set aside the exparte order but filed the first appeal as the suit was decreed on merits
after contest.
Before the first appellate Court, the first respondent herein argued that he remained exparte in the suit, he has got certain documents to be
produced in support of his defence in the suit and he must be given an opportunity to disprove the case of the plaintiff/appellant. The first appellate
Court simply accepted the plea of the first respondent and remanded the matter back to the trial court for fresh consideration summarily on the
only ground that the first respondent must be given an opportunity to contest the matter. The first appellate Court has not recorded any findings as
to how the decree and judgment passed by the trial court is vitiated or invalid. In the absence of such a finding by the first appellate Court, the
order of the first appellate Court is liable to be set aside as it is against the provisions of Order 41 Rule 23-A of CPC.
In the decision reported in Municipal Corporation, Hyderabad Vs. Sunder Singh, it was held by the Honourable Supreme Court that an order
of remand should not be passed by the First Appellate Court as a matter of course. In fact, the Court should be slow in exercising the discretionary
powers conferred under Rule 23. Further, before passing an order of remand, the first Appellate Court has to record reasons that re-trial was
necessary and also give finding that the decree and judgment passed by the trial Court is liable to be reversed and only then, an order of remand
should be passed. In Para Nos. 17, 18, 32, 33 and 34, it was held as follows:
Order 41 Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the
findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the
case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court.
It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well
settled that the court should loathe to exercise its power in terms of Order 41 Rule 23 of the CPC and an order of remand should not be passed
routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the
decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.
A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms
of Order 41 Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order 41 Rule 23 was therefore not available. On what
basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary
evidence.
Order 41 Rule 23-A of the CPC is also not attracted. The High Court had not arrived at a finding that a retrial was necessary. The High Court
again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court
under Order 41 Rule 23 of the Code.
An order of remand cannot be passed on ipse dixit of the court. The provisions of Order 2 Rule 2 of the CPC as also Section 11 thereof could
be invoked, provided of course the conditions precedent therefore were satisfied. We may not have to deal with the legal position obtaining in this
behalf as the question has recently been dealt with by this Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas.
It is also relevant to look into the decision of the Division Bench of this Court reported in V. Munusamy (deceased) and Others Vs. M. Suguna,
wherein this Honourable Court held as follows:
Based on the averment in the affidavit filed in support of I.A. No. 7745 of 1987, filed u/s 4(1) of the Act, the trial court, after satisfying itself,
gave a finding that the petitioner therein/appellant herein is entitled to purchase the suit property on such finding satisfies one of the conditions
prescribed u/s 4(1) of the Act. No doubt, the trial court has not arrived the value of the shae purchased by the transferee i.e., plaintiff. However, as
rightly pointed out by the learned senior Counsel for the appellant, on this ground, the lower appellate court set aside the order of the trial Court,
including the finding of the entitlement of the appellant to purchase undivided share alienated by the family member to stranger alienee. As rightly
argued, the principles underlying the exercise of the power of remand by the appellate Court has not been properly applied or exercised by the
lower appellate Court. Courts have held that only in exceptional cases where the judgment of the trial Court is wholly unintelligible or
incomprehensible, the appellate Court can remand the matter for fresh disposal. Order 41, Rule 23 give ample power to the lower appellate Court
to decide all issues, including appointment of a Commission for local inspection, secure finding from the trial Court. Even if certain mistakes crept in
in the order of the trial court, the same can be rectified by the appellate Court itself, unless there are very compelling circumstances to make an
order of remand. An order of remand should not be taken to be matter of course and the power of remand should be sparingly exercised. There
should be always endeavour to dispose of the case by the appellate Court itself, when the commissions and omissions made by the first Court
could be corrected by the appellate Court. In the case on hand, even if there is omission by the trial court regarding determination of the value of
the share purchased by the plaintiff, in the light of the above discussion coupled with the mandate provided under Order 41 Rules 23 and 27, the
appellate Court itself can ascertain the value either by appointment of a Commissioner or by getting a report from the trial Court. As said earlier,
Section 4(1) of the Act gives option to any member of the family who is a co-sharer in respect of a dwelling house, a portion whereof has been
transferred to a person who is not a member of such family, to purchase the share of such transferee if a suit for partition is filed by that transferee.
On such option being exercised, the valuation of such share has to be determined. The crucial date for the purpose of fixing the valuation of the
share of such transferee is the date when option to purchase in accordance with Section 4 of the Act is exercised by the defendant co-sharer.
In Bhuvaneswari Vs. Saraswathi Ammal, , the Division Bench of this Court in para 3, held as follows:
We went through the judgment of the lower appellate Court. As already noted, enough oral and documentary evidence had been let in on the
side of the plaintiff as well as on the side of the defendant. An order of remand cannot be for the mere purpose of remanding a proceeding to the
lower Court. It is governed by the provisions of the Code of Procedure, commencing from Order 41 Rule 22 onwards. The appellate Judge''s
view that in order to enable the parties to have the suit properties identified, an Advocate Commissioner had to be appointed and for that purpose
the suit must be remanded to the trial court, in our considered opinion, is not warranted on the facts of the case. If it is possible for the appellate
Court to evaluate the evidence made available on record and come to its own conclusion one way or the other, then it is open to the lower
appellate Court to come to the aid of the parties for filling up a lacuna which is found wanting in the recoreds.
In this connection, I am also fortified by the decision rendered by the Honourable Supreme Court reported in P. Purushottam Reddy and
Another Vs. Pratap Steels Ltd., wherein in para-10 and 11, it was stated thus:
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 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 therefore 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 Clauses 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 Rules 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 dehors 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 the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the
issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and then
framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary.
Neither Rule 23 nor Rule 23-A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of
additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule 25. So far as the objection as to
maintainability of the suit for failure of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix A CPC is concerned, the High Court
has itself found that there was no specific plea taken in the written statement. The question of framing an issue did not, therefore, arise. However,
the plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the
plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and
willingness by reference to Clause (c) of Section 16 of the Specific Relief Act, 1963 is concerned, the pleadings are there as they were and the
question of improving upon the pleadings does not arise inasmuch as neither any of the parties made a prayer for amendment in the pleadings nor
has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial court. Nevertheless, the parties and the trial
court were very much alive to the issue whether Section 16(c) of the Specific Relief Act was complied with or not and the contentions advanced
by the parties in this regard were also adjudicated upon. The High Court was to examine whether such finding of the trial court was sustainable or
not - in law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the
available material inasmuch as the High Court being the court of first appeal, all the questions of fact and law arising in the case were open before it
for consideration and decision.
In Sekaran Real Estates, a Partnership firm, by Managing Partner K. Chandrasekaran v. Punjab National Bank, Mylapore Branch, Mylapore,
Madras-4, by its Manager 2000 (I) CTC 613 a learned single Judge in para No. 4, held as follows:
It is clear from the above decisions as well as the provisions contained in Order 41, Rules 23 to 29, C.P.C. that duty is cast on the appellate Court
to find that the decree of the trial court should be set aside. Even the fact that there are some defects or infirmities in the reasoning of the trial court
is not a ground for the appellate court to remand the same to the trial court. The appellate Court should come to the clear conclusion that the
findings of the trial court cannot be supported and must be set aside. Only in exceptional cases where the judgment of the trial court is wholly
unintelligible or incomprehensible that the appellate Court can remand the suit for fresh trial. A reading of the judgment of the appellate Court
would show that it has not at all considered the judgment of the trial court nor pointed out infirmity or defect in the conclusion. Further, the learned
appellate Judge has not borne in mind any of the principles mentioned above. A careful scrutiny of the judgment also shows that he never felt that
the judgment of the trial court must be set aside or reversed. After allowing the amendment petition, the appellate court has simply directed the trial
court to try the matter once again, after affording further opportunity to the parties, the directions contained in the order of remand are vague and
too general in character. The fact that the lower appellate Court has not considered the reasoning or merits of the decree of the trial court has not
been disputed by the learned Counsel for the respondent-Bank.
In Kannathal and Others Vs. Arulmighu Kanniammal Karuppasamy Thirukoil and State of Tamil Nadu, , a learned single Judge of this
Honourable Court held in para No. 15 and 17 as follows:
It is also settled law that if the issues arising in the suit could be decided on the evidence available on record, the lower Appellate Court itself
should decide the case on merits without unnecessarily ordering remand. A perusal of the pleadings in the case shows that all the necessary
pleadings are available on record. Even if the Lower Appellate Court was of the opinion that it was necessary to give an opportunity to the plaintiff
to amend the pleadings, that opportunity could have been given in the First Appellate Court itself and for that purpose, the remand is not needed.
16....
In the light of the law laid down by the Apex Court in the decisions reported in Ishwardas v. State of Madhya Pradesh and Ors. AIR 1979 SC
55 and P. Purusottam Reddy and Anr. v. Pratap Steels Limited 2002 (2) CTC 686, this Court is of the considered view that the Lower Appellate
Court has committed an error of law in remanding the matter only for the purpose of affording an opportunity to the plaintiff to amend the pleadings
and to adduce additional evidence. As laid down by the Apex Court it is not proper for the Appellate Court to remand the case to enable the
parties to make good their lapse.
In Sujatha v. Vijay Anand and Anr. (2007) 4 MLJ 447, a learned single Judge of this Court in Para No. 15 and 16, held as follows:
In the case on hand, the learned District Judge has not reversed or set aside the finding of the trial court. It is only to give opportunity to the
plaintiffs to prove the Will dated 12.08.1982, the lower Appellate Court has remanded that suit to the trial court. The procedure adopted by the
learned District Judge is not correct. The District Judge himself got jurisdiction and powers under Order 41 and Section 151 of C.P.C.
I am of the opinion that the order of remand of the suit cannot be sustained and therefore, the judgment and decree of the learned District
Judge remanding the suit to the trial court are set aside. The learned District Judge is directed to take the first appeal and I.A. No. 53 of 2001 on
its file and give opportunity to both parties with regard to the proof of the said document dated 12.08.1982 and dispose of the first appeal on
merits.
In the aforesaid decisions, it was categorically held that order of remand should not be passed as a matter of course and without giving a
finding as to how the decree and judgment of the trial court is perverse, illegal, especially, after amendment to Order 41 Rule 23A of CPC. In the
case on hand, the first appellate Court remanded the matter back to the trial court for fresh consideration summarily on the only ground that the
first respondent only to give an opportunity to the first defendant, who remained exparte before the trial court. No finding has been given by the
first appellate Court as to how the decree and judgment passed by the trial court is vitiated warranting it to pass an order of remand. Under those
circumstances, the Judgment and Decree dated 07.07.2006 in A.S. No. 7 of 2005 on the file of the Subordinate Judge, Thiruvarur is set aside.
The matter is remanded to the first appellate Court for disposing of the first appeal on merits and in accordance with law after giving sufficient
opportunity to both sides to prove their case.
In the result, the civil miscellaneous petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.