Case Note & Summary
The case arises from a suit for removal of encroachment and possession filed by the respondent (original plaintiff) against the appellant (original defendant) concerning land in Survey No. 22. The plaintiff claimed ownership based on a 7/12 extract and alleged encroachment by the defendant. The defendant denied encroachment and contended that the plaintiff's area was in excess of what was conveyed by sale deeds, attributing the excess to consolidation proceedings. The trial court dismissed the suit, holding that the plaintiff failed to prove ownership and that the defendant's explanation regarding consolidation was probable. The plaintiff appealed, and the First Appellate Court reversed the dismissal and remanded the matter for fresh consideration, directing measurement of the entire survey no. 22, allowing amendment of pleadings, and granting liberty to parties to amend based on the surveyor's report. The defendant challenged this remand order in the High Court. The High Court allowed the appeal, setting aside the remand order. It held that the First Appellate Court exceeded its jurisdiction under Order 41 Rule 23 CPC, as the trial court had not disposed of the suit on a preliminary point. The appellate court could have taken additional evidence or framed issues for trial, but could not order a full remand. The matter was remitted back to the First Appellate Court for fresh disposal in accordance with law.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23 CPC - Preliminary Point - The First Appellate Court set aside the trial court's dismissal of a suit for removal of encroachment and remanded the matter for fresh trial, allowing amendment of pleadings and appointment of a surveyor. The High Court held that the remand order was not sustainable because the trial court had not disposed of the suit on a preliminary point; the appellate court's power to remand under Order 41 Rule 23 CPC is limited to cases where the suit is decided on a preliminary point. The appellate court cannot remand merely to fill gaps in evidence or to allow a party to improve its case. (Paras 5-7) B) Civil Procedure - Remand - Order 41 Rule 23-A CPC - Additional Evidence - The High Court noted that the First Appellate Court could have exercised its power under Order 41 Rule 23-A or Rule 25 CPC to take additional evidence or to frame issues and refer them to the trial court, instead of ordering a full remand. The appellate court's order was held to be beyond its jurisdiction. (Paras 5-7) C) Civil Procedure - Remand - Order 41 Rule 23 CPC - Scope - The High Court clarified that the power to remand under Order 41 Rule 23 CPC is not a general power to order a fresh trial; it is confined to cases where the lower court has disposed of the suit on a preliminary point without recording findings on other issues. In the present case, the trial court had dismissed the suit after a full trial, and the appellate court's remand was not justified. (Paras 5-7)
Issue of Consideration
Whether the First Appellate Court was justified in reversing the trial court's dismissal of the suit and remanding the matter for fresh consideration, including allowing amendment of pleadings and appointment of a surveyor, without recording a finding that the suit was disposed of on a preliminary point.
Final Decision
The High Court allowed the appeal, set aside the impugned order of the First Appellate Court, and remitted the matter back to the First Appellate Court for fresh disposal in accordance with law, without expressing any opinion on the merits.
Law Points
- Remand order under Order 41 Rule 23 CPC must be based on a finding that the suit was disposed of on a preliminary point
- appellate court cannot remand for fresh trial merely to fill gaps in evidence
- Order 41 Rule 23 CPC
- Order 41 Rule 23-A CPC
- Order 41 Rule 25 CPC
