Case Note & Summary
The present Miscellaneous Second Appeal was filed by the defendants (appellants) challenging the order dated 17.09.2022 passed by the 1st Additional Senior Civil Judge, Ballari in R.A. No.21/2019, whereby the First Appellate Court set aside the judgment and decree dated 11.12.2018 passed by the trial court in O.S. No.780/2015 and remanded the matter to the trial court for fresh consideration. The plaintiff had originally filed a suit for permanent injunction based on possession. The trial court, after full trial, dismissed the suit. Aggrieved, the plaintiff filed an appeal before the First Appellate Court. The First Appellate Court, without deciding the appeal on merits, set aside the trial court's decree and remanded the matter back to the trial court for fresh consideration. The defendants challenged this remand order before the High Court. The High Court examined the provisions of Order 41 Rule 23 and Rule 23A of the Code of Civil Procedure, 1908. It held that remand under Order 41 Rule 23 is permissible only when the suit is disposed of on a preliminary point, and under Rule 23A only when the appellate court reverses the decree on a preliminary point and remands for retrial. In the present case, the trial court had decided the suit on merits after full trial, and therefore, the First Appellate Court was required to decide the appeal on merits. The remand order was held to be improper and without jurisdiction. The High Court allowed the appeal, set aside the remand order, and directed the First Appellate Court to decide the appeal on merits in accordance with law, after giving opportunity to both parties. The High Court also directed the First Appellate Court to dispose of the appeal within six months from the date of receipt of the order.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23 and Rule 23A CPC - Improper Remand - The First Appellate Court set aside the trial court's decree and remanded the matter for fresh consideration without deciding the appeal on merits. The High Court held that remand under Order 41 Rule 23 is permissible only when the suit is disposed of on a preliminary point, and under Rule 23A only when the appellate court reverses the decree on a preliminary point and remands for retrial. Since the trial court had decided the suit on merits after full trial, the appellate court was required to decide the appeal on merits and could not remand the matter. The remand order was set aside. (Paras 1-10) B) Civil Procedure - Permanent Injunction - Suit for Injunction - Burden of Proof - The plaintiff filed a suit for permanent injunction based on possession. The trial court dismissed the suit after trial. The First Appellate Court remanded the matter without deciding the appeal on merits. The High Court held that the appellate court must decide the appeal on merits and cannot remand the matter unless conditions under Order 41 Rule 23 or 23A are satisfied. (Paras 3-10) C) Civil Procedure - Appellate Court's Powers - Remand - Section 43 CPC - The appeal under Section 43 CPC was allowed. The High Court set aside the remand order and directed the First Appellate Court to decide the appeal on merits in accordance with law, after giving opportunity to both parties. (Paras 10-11)
Issue of Consideration
Whether the First Appellate Court was justified in remanding the matter to the trial court without deciding the appeal on merits, and whether the remand order was sustainable under Order 41 Rule 23 or Rule 23A of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the appeal, set aside the impugned order dated 17.09.2022 passed in R.A. No.21/2019, and directed the First Appellate Court to decide the appeal on merits in accordance with law, after giving opportunity to both parties. The First Appellate Court was directed to dispose of the appeal within six months from the date of receipt of the order.
Law Points
- Remand order without deciding merits is improper
- Order 41 Rule 23A CPC
- Order 41 Rule 23 CPC
- Section 43 CPC
- Permanent Injunction
- Suit for injunction
- Appellate Court's power to remand
- Conditions for remand
- Trial Court's duty to decide on merits
