Case Note & Summary
The appellants, original defendants in a civil suit, challenged an order dated 13 July 2010 passed by the learned Extra Jt. Ad-hoc District Judge, Satara, which partly allowed the plaintiff-respondent's Regular Civil Appeal. The appellate court quashed and set aside the judgment and decree of the trial court (Civil Judge, Jr. Division, Phaltan) and remanded the matter for fresh trial, directing both parties to be given an opportunity to lead oral and documentary evidence in light of observations made in the order. The appellants contended that the trial court had dismissed the suit after considering all documents and material on record, giving opportunity to both parties, and dealing with respective issues with proper reasons. They argued that there was no ground to remand the matter for retrial, as no exceptional case was made out. The learned counsel for the appellants relied on several Supreme Court and High Court judgments, including P. Purushottam Reddy v. Pratap Steels Ltd., J. Lingaiah v. G. Hanumanthappa, Sk. Ibrahim v. Sk. Mehmood, Patel Sureshbhai Jashbhai v. Patel Satabhai Mathurbhai, and Sayed Akbar v. Dhondiba Namdeo Bhosale, to support the proposition that remand is permissible only in exceptional circumstances, such as when the trial was not fair or proper, or when parties were denied opportunity. The High Court, after hearing the appellants (respondent was served but unrepresented), held that the appellate court's order of remand was not justified. The court observed that the trial court had already given full opportunity to both parties and had decided the suit on merits. The appellate court did not record any finding that the trial was not fair or that parties were denied opportunity. Therefore, the impugned order was quashed and set aside, and the appeal was allowed. The matter was remanded to the appellate court for fresh disposal of the appeal in accordance with law, without being influenced by any observations made in the impugned order.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23 CPC - Appellate Court's Power to Remand - The appellate court can remand a case only if the trial court disposed of the suit on a preliminary point without deciding all issues, or if the decree is reversed and retrial is necessary. Mere desire to give another opportunity to lead evidence is not sufficient. In this case, the trial court had dismissed the suit after considering all documents and giving opportunity to parties. The appellate court's order of remand was set aside as no exceptional case was made out. (Paras 1-3) B) Civil Procedure - Remand - Exceptional Circumstances - Order 41 Rule 23 CPC - Remand for retrial is not permissible unless the trial was not fair or proper, or parties were denied opportunity. The appellate court must record reasons why remand is necessary. Here, the appellate court remanded without such findings, hence the order was quashed. (Paras 2-3)
Issue of Consideration
Whether the appellate court was justified in remanding the matter to the trial court for fresh trial when the trial court had dismissed the suit after considering all evidence and giving opportunity to parties.
Final Decision
The appeal is allowed. The impugned order dated 13 July 2010 passed by the learned Extra Jt. Ad-hoc District Judge, Satara is quashed and set aside. The matter is remanded to the appellate court for fresh disposal of the appeal in accordance with law, without being influenced by any observations made in the impugned order.
Law Points
- Remand under Order 41 Rule 23 CPC is permissible only when trial court disposed of suit on preliminary point without recording findings on other issues
- or when decree is reversed in appeal and retrial is necessary
- appellate court cannot remand merely to give another opportunity to lead evidence if trial was fair and parties had opportunity
- exceptional circumstances required for remand.
