Mahinder Kaur v. Rajwant Kaur

In the High Court of Punjab and Haryana, at Chandigarh Date of Decision: 30.04.2025 Mahinder Kaur and Others ... Petitioner(s)

Versus

Rajwant Kaur and Others ... Respondent(s) CORAM: Hon'ble Mr. Justice Anil Kshetarpal.

Present:

Mr. Balbir Singh Jaswal, Advocate for the appellant(s).

Mr. Kushagra Mahajan, Advocate for respondent No.1.

Anil Kshetarpal, J.

1.

The plaintiffs assail the correctness of the First Appellate Court's order remitting the matter back to the Trial Court for fresh decision. 2.

The plaintiffs filed a suit for specific performance of the agreement to sell with consequential relief of permanent injunction which was contested by the defendants. Ultimately, the suit was decreed by an elaborate judgment passed by the Trial Court. The defendant No.2 filed the first appeal which was allowed on the ground that no specific issue has been framed by the Trial Court regarding the fact that the agreement to sell propounded by the plaintiffs is forged & fabricated and has been pre-dated in order to defeat the right of the defendants. The Trial Court has also not framed any issue as to "whether the defendant is a bonafide purchaser?" 3.

It is open to the First Appellate Court to modify the issues or

frame additional issues, however, on this ground, it not permissible for the First Appellate Court to remit the matter back to the Trial Court. 4.

The enabling power of the Appellate Court to remit the matter back to the Trial Court is regulated by Order XLI Rule 23 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") which has been explained by the Supreme Court in P.Purushottam Reddy and Another v. Pratap Steels Ltd. (2002) 2 SCC 686 in the following manner:- "10. 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 Code of Civil Procedure by 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 in as much 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.

was a settled position of law before 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand it such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 11 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Subrule (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.

23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. 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 v. Sushila (AIR 1965 SC 365 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 23A. 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 11 Rule 31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for re-writing 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 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided." 5.

It is evident that the First Appellate Court has neither set aside the judgment of the Trial Court on merits nor remitted the matter back to the Trial Court after coming to a conclusion that retrial of the case is necessary. 6.

Keeping in view the aforesaid facts, the present appeal is allowed and the impugned order is set aside. The first appeal is ordered to be restored to its original number. The First Appellate Court is directed to proceed with the matter, in accordance with law. It may be noted here that if the First Appellate Court finds that some additional issues are required to be framed, it shall either seek a report from the Trial Court or call upon the parties to lead their respective evidence. The parties, through their learned counsel, are directed to appear before the First Appellate Court on 26.05.2025.

7.

The miscellaneous application(s) pending, if any, shall stand disposed of.

(Anil Kshetarpal) Judge April 30, 2025 "DK"

Whether speaking/reasoned :Yes/No Whether reportable : Yes/No