Case Note & Summary
The present appeal is a Miscellaneous Second Appeal filed by the 2nd defendant in a suit for declaration and permanent injunction, challenging the order of remand passed by the First Appellate Court in R.A. No.54/2018. The suit, O.S. No.48/2013, was originally dismissed by the trial court (II Additional Senior Civil Judge, Shivamogga) on 14.06.2018. The plaintiffs appealed, and the First Appellate Court (I Additional District and Sessions Judge, Shivamogga) by judgment dated 29.09.2021 set aside the trial court's judgment and remanded the matter to the trial court with a direction to hear arguments afresh on all issues, record findings, and pass appropriate orders. The appellant (2nd defendant) contended that the remand order was passed without proper application of mind and without recording satisfaction as required under Order XLI Rule 23-A of the Code of Civil Procedure, 1908. The High Court, after hearing both sides, found that the operative portion of the First Appellate Court's judgment merely stated that the judgment of the trial court was set aside and the matter was remitted for fresh hearing, without recording any satisfaction that the judgment was reversed and that a retrial was necessary. The High Court held that such a remand order is not sustainable in law and set aside the impugned judgment. The High Court directed the First Appellate Court to hear the appeal afresh and dispose it on merits in accordance with law, without being influenced by any observations made in the order. The appeal was allowed.
Headnote
A) Civil Procedure - Remand - Order XLI Rule 23-A CPC - First Appellate Court's Power - The First Appellate Court set aside the trial court's judgment dismissing the suit and remanded the matter for fresh hearing without recording satisfaction that the judgment was reversed and retrial was necessary. The High Court held that the remand order was passed without proper application of mind and without recording findings on all issues, and thus set aside the remand order and directed the First Appellate Court to hear the appeal afresh and dispose it on merits. (Paras 2-5) B) Civil Procedure - Remand - Order XLI Rule 23-A CPC - Requirement of Recording Satisfaction - The High Court emphasized that a remand order under Order XLI Rule 23-A CPC cannot be passed mechanically; the appellate court must record its satisfaction that the judgment under appeal is reversed and that a retrial is necessary. The impugned order did not meet this requirement. (Paras 3-5)
Issue of Consideration
Whether the First Appellate Court was justified in setting aside the trial court's judgment and remanding the matter without recording proper satisfaction as required under Order XLI Rule 23-A of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the appeal, set aside the judgment and decree dated 29.09.2021 passed in R.A. No.54/2018, and directed the First Appellate Court to hear the appeal afresh and dispose it on merits in accordance with law, without being influenced by any observations made in the order.
Law Points
- Remand order under Order XLI Rule 23-A CPC requires satisfaction that judgment is reversed and retrial is necessary
- First Appellate Court must record findings on all issues before remanding
- Order XLI Rule 23-A CPC is not a routine provision
