Case Note & Summary
The appeal arises from a judgment and order dated 22 March 2022 passed by the District Judge, Raigad, setting aside the judgment and decree dated 22 April 2017 of the Joint Civil Judge Junior Division, Alibaug in Regular Civil Suit No.147/2011 and remanding the suit for fresh hearing after adding necessary parties and framing additional issues. The appellant-plaintiff, Vasant Bhaskar Thakur (since deceased, represented by legal heirs), had filed the suit seeking declaration of ownership and possession of land bearing Gat No.36 at Village Mhatroli, Taluka Alibaug, District Raigad, claiming that the land was allotted to his father Bhaskar Rama Thakur in an oral partition dated 1 June 1950. The respondent-defendant, Sitaram Waman Thakur, contested the suit. The trial court, after full trial, dismissed the suit on merits. The first appellate court, however, set aside the decree and remanded the suit, observing that the plaintiff had not impleaded all necessary parties and that additional issues were required. The High Court examined the power of an appellate court to remand under Order 41 Rule 23A CPC. It held that the provision applies only when the trial court has disposed of the suit on a preliminary point without deciding all issues, or when there is a procedural irregularity. Since the trial court had decided the suit on merits after a full trial, the appellate court could not remand the suit merely to add parties or frame additional issues. The High Court set aside the remand order and restored the appeal to the file of the District Judge for fresh disposal on merits in accordance with law.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23A CPC - Power of Appellate Court to remand suit for retrial - The issue pertains to the scope of Order 41 Rule 23A of the Code of Civil Procedure, 1908, which permits an appellate court to remand a suit for retrial only if the trial court has disposed of the suit on a preliminary point without deciding all issues, or if there is a procedural irregularity. In the present case, the trial court had decided the suit on merits after full trial, and the appellate court remanded the suit for adding parties and framing additional issues. Held that such remand is not permissible under Order 41 Rule 23A as the suit was not disposed of on a preliminary point and there was no procedural irregularity. The appellate court exceeded its jurisdiction. (Paras 2, 10-15)
Issue of Consideration
Whether the District Judge was justified in exercising power under Order 41 Rule 23A of the Code of Civil Procedure, 1908 to remand the suit for retrial when the trial court had already decided the suit on merits and there was no procedural irregularity or failure to decide issues.
Final Decision
The High Court allowed the appeal, set aside the impugned judgment and order dated 22 March 2022 passed by the District Judge, Raigad, and restored the appeal to the file of the District Judge for fresh disposal on merits in accordance with law. The interim application also stands disposed of.
Law Points
- Order 41 Rule 23A CPC
- Remand for retrial
- Appellate Court's power
- Procedural irregularity
- Suit decided on merits
- No remand without necessity
