Bombay High Court Reviews Remand Order in Specific Performance Suit; Examines Whether First Appellate Court Should Have Decided Suit on Existing Evidence Under CPC Order XLI Rule 24. Specific Performance Suit Remanded by First Appellate Court for De Novo Trial Despite Substantial Evidence; High Court Considers Whether Appellate Court Should Have Decided Suit Finally.

Appeal from order against first appellate court's remand order in a suit for declaration and specific performance of an agreement.

Appellant/plaintiff sought to set aside the remand order and have the First Appellate Court decide the suit on existing evidence, or alternatively to direct the First Appellate Court to decide the matter in accordance with law.

The First Appellate Court set aside the Trial Court's decree for specific performance and declaration and remanded the suit for de novo trial without considering the evidence on record, prompting the appellant to challenge the legality of the remand.

Trial Court decreed the suit in favour of the plaintiff; First Appellate Court set aside that decree and remanded the matter to the Trial Court for fresh decision with additional issues.

Whether the First Appellate Court erred in remanding the suit for de novo trial instead of deciding it under Order XLI Rule 24 CPC based on evidence on record? Whether a suit for specific performance is maintainable without a declaration challenging the termination/cancellation of the underlying agreement? Whether the remand order is sustainable in view of Rules 23, 23A and 24 of Order XLI CPC?

Appellant contended that the Trial Court had framed all necessary issues, parties had led substantial evidence, and the First Appellate Court was required to re-examine that evidence as the last fact-finding court, not remand the matter for a de novo trial. Appellant argued that under Order XLI Rule 24 CPC, the Appellate Court could have reframed issues if necessary and determined the suit finally, relying on Shivkumar v. Sharanbasappa, Barku Pundlik Patil, and Balkrishna Dattatraya Butte. Respondent no. 3 submitted that defendant no. 2 had terminated the agreement by letter dated 22 February 2003 and returned the earnest amount; the plaintiff admitted receipt of that letter but did not seek declaratory relief against the termination, making the suit for specific performance not maintainable. Respondent no. 3 further argued that a remand for de novo trial would eliminate any claim of lack of opportunity to lead evidence on maintainability, relying on Sangita Sinha v. Bhawana Bhardwaj. Respondent no. 2 adopted the submissions of respondent no. 3 and supported the impugned remand order.

The court's analysis indicated that an appellate court should not remand a case as a matter of routine or on mere asking; under Order XLI Rules 23, 23A and 24 CPC, the appellate court may dispose of a case finally without remand if the evidence on record is sufficient, even if it proceeds on a different ground than the trial court. The court also considered the requirement of declaratory relief for specific performance after termination of the agreement.

Learned counsel for the appellant submits that it is a well-established legal principle that the order of remand should not be passed as a matter of routine or on mere asking. The Hon’ble Apex Court in the case of Shivkumar, held that Rule 24 of Order XLI of CPC enables the Appellate Court to dispose of a case finally without remand, if the evidence on record is sufficient, notwithstanding that the Appellate Court proceeds on a ground entirely different from that on which the Trial Court has proceeded. In the absence of a declaratory relief, the plaintiff’s suit for specific performance would not be maintainable.

The plaintiff filed a suit for specific performance of an agreement dated 11 September 2002 and for declaration that the subsequent sale deed dated 11 September 2003 in favour of defendant no. 3 was illegal and not binding. Defendant no. 2 had terminated the agreement by letter dated 22 February 2003. The plaintiff issued a notice dated 30 July 2004, to which defendant no. 2 replied on 7 August 2004. The Trial Court framed issues and, after evidence, decreed the suit in favour of the plaintiff. The First Appellate Court set aside that decree and remanded the matter to the Trial Court for fresh decision with additional issues, leading to the present appeal from order in the High Court.

• Code of Civil Procedure, 1908: Order XLI Rules 22, 23, 23A, 24, 25