M/s Sekaran Real Estates vs Punjab National Bank

Aggrieved by the order of remand made by the lower appellate court in A.S.No.316 of 1987, the plaintiff has filed the above Civil

Miscellaneous Appeal before this Court. The appellant/plaintiff has filed in O.S.No.6993 of 1983 before the XIth Assistant Judge, City Civil

Court, Madras praying for a decree for mandatory injunction directing the defendant. Punjab National Bank to give credit of a sum of Rs 20,000

deposited on 25.4.83 in his current account maintained by the Bank and direct the defendant to pay the plaintiff the sum of Rs. 20,000 with interest

thereon at 12 per cent per annum from the date of decree in the suit until realisation. By judgment and decree dated 8.4.85, the learned trial Judge

decreed the suit as prayed for with costs. The defendant Bank filed an appeal in A.S.No.316 of 1987 before the Principal City Civil Judge,

Madras. While the appeal of the defendant is pending before the lower appellate court, the plaintiff has filed C.M.P.No.6 of 1988 under Order

Rule 17 read with Section 40(2) of Specific Relief Act for amendment of his plaint in O.S.No.6993 of 1983. Even though the appellant/plaintiff has

prayed for decree for mandatory injunction and having obtained decree as prayed for in order to avoid technical objection, the plaintiff has filed the

said application for amendment of the plaint and prayed for a money decree in respect of Rs.20,000 paid by him. After holding that by virtue of the

present claim for amendment, the plaintiff is not introducing any fresh cause of action and it will not affect the defence of the defendant in the

interest of justice, allowed the said amendment. Inasmuch as the plaintiff has filed the said application only at the appellate stage when the appeal

was pending before the lower appellate court, the Court below has directed the plaintiff to pay a sum of Rs.250 towards costs to the other side.

After allowing the said application for amendment and in order to give an opportunity to both parties, remanded the case to the trial court. The

learned Judge has also permitted the defendant to file additional written statement, if necessary and also permitted both parties to lead fresh

evidence.

Mr. K. Kesavanath Davey, learned counsel for the appellant, by pointing out the relevant provision, namely, Order 41, Rule 23 of the Code of

Civil Procedure, contended that in the absence of setting aside the judgment and decree of the trial court, the remand made by the lower appellate

court cannot be sustained. The circumstances in which the appellate court can remand the matter to the trial court has been explained in Order 41,

Rules 23 to 29, C.P.C. In our case, the lower appellate court after allowing the amendment petition of the plaintiff, which according to the plaintiff,

is only a formal and it requires no further evidence or adjudication, without assigning any reason or reasons or setting aside the judgment and

decree of the trial court, merely remanded the case to the trial court with a liberty to both parties to lead fresh evidence. I have already stated that

elaborate procedure and the circumstances in which the matter has to be remanded to the trial court have been enumerated in Order 41, Rules, 23

to 29, C.P.C. A perusal of the said clauses shows that irrespective of allowing the amendment petition, the appellate court itself can deal with the

matter and dispose of the same one way or other. However, without setting aside the judgment and decree of the trial court, it would not be

possible for the appellate court to remit the case to the trial court in order to give an opportunity to the parties. Such remand without following the

procedure enumerated in Order 41, Rule 23 to 29 has been depricated in so many decisions of this Court. In this regard, the learned counsel for

the appellant has very much relied on a judgment of Venkataraman, J., reported in Achammal v. Kistama Naidu, 81 L.W. 291. After considering

the provisions contained in Order 41, Rule 23, the learned Judge has held as follows:

..It is settled law, at any rate, so far as the court is concerned, under Order 41, Rule 23, that before the suit could be remanded to the trial court,

it is necessary for the appellate court to find that the decree of the trial court should be set aside,..

In the case of Balasubramania Iyer Vs. Subbiah Thevar and Another, , Ramamurti, J., has held as follows-

The powers of an appellate Court to pass an order of remand and to send the case back for trial is well settled. Under Order 41, Rule 23

C.P.C. the appellate court has got power to remand a suit for fresh disposal (a) if the suit has been disposed of on a preliminary point or (b) if the

appellate court considers that it is necessary in the interests of justice that the matter should be disposed of afresh by the trial court. It has been

repeatedly pointed out by this Court that this power of remand ought not to be lightly exercised by the appellate court, where it has failed to

discharge its own duty of disposing of the appeal on merits. Frequent instances are coming to the notice of this Court in which orders of remand

are passed under O.41,Rule 23, C.P.C. indiscriminately even though the requirements of law were not satisfied at all. If the trial court has not

disposed of the suit on a preliminary point but has delivered judgment on merits it is the duty of the appellate court to deal with the appeal on its

merits. It is 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 a fresh trial. The fact that there are some defeats and infirmities in the reasoning of the trial court is surely not a ground for the

appellate court not to do its duty of disposing of the appeal on merits. The appellate court will be acting clearly without jurisdiction if it simply and

mechanically remands a suit to the trial court without applying its mind as to whether the judgment and the findings of the trial court are correct and

if not whether it should be reversed or set aside. In other words, the appellate court should come to the clear conclusion that the findings of the trial

court cannot be supported and must be set aside. Ends of justice require that a party litigant who had incurred expenses and undergone all the

ordeal and trouble of a protracted trial in the trial court should not be deprived of the benefit of the adjudication and be obliged to fight the case,

over again for some defect or mistake in the form of expenses of the trial court. The tendency on the part of the appellate court to remand a suit on

sleneer grounds cannot but be strongly deprecated.

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 any infirmity or defect in the conclusion. Further, the learned

appellate Judge has not born 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.

Under these circumstances, I have, therefore no hesitation in setting aside the order of remand passed by the learned appellate Judge and direct

him to restore A.S.No. 316 of 1987 on his file and dispose it of according to law. I do not wish to say anything further about the merits of the case

or about the implementation of the amendment ordered by the lower appellate court. The lower appellate judge can dispose of the appeal on the

materials available or if he thinks it necessary, he can take additional evidence under Order 41, Rule 27 and 28, C.P.C.. after giving sufficient

opportunities to the parties to adduce further evidence, civil miscellaneous appeal is allowed. No costs, inasmuch as the appeal is of the year 1987,

the lower appellate court is directed to dispose of the appeal within a period of three months from the date of receipt of a copy of this Order.