Case Note & Summary
The appellant, original defendant No. 1, filed an appeal against the order of remand dated 16.7.2013 passed by the District Judge-I, North Goa, at Panaji in Regular Civil Appeal No. 339 of 2010. The respondents, original plaintiffs, had filed Special Civil Suit No. 21/1984/A against the appellant and respondent No. 2 for declaration of title and possession. The trial court dismissed the suit on 30.4.2001, holding that the suit was barred by limitation and that the defendants had acquired title by adverse possession. The plaintiffs appealed, and the District Judge remanded the suit to the trial court for fresh decision, directing the trial court to frame proper issues and decide the case afresh. The appellant challenged this remand order. The High Court examined the legality of the remand order and found that the District Judge had not set aside the trial court's judgment and decree before remanding. The High Court held that an order of remand without setting aside the decree is not permissible under law. The appellate court must first set aside the decree and then remand only if the case falls under Order 41 Rule 23 or Rule 23A CPC. The High Court noted that the District Judge's reasons for remand were essentially a disagreement with the trial court's findings on limitation and adverse possession, which are mixed questions of law and fact. The High Court concluded that the remand order was unsustainable and allowed the appeal, setting aside the remand order and restoring the trial court's decree dismissing the suit.
Headnote
A) Civil Procedure - Remand - Order of Remand - Validity - The appellate court remanded the suit to the trial court for fresh decision without setting aside the trial court's judgment and decree dismissing the suit - Held that such a remand order is not permissible under law as the appellate court must first set aside the decree before remanding, and the remand must be for a proper purpose such as framing of issues or additional evidence, not for re-evaluation of evidence already considered (Paras 5-10). B) Limitation - Adverse Possession - Mixed Question of Law and Fact - The trial court had dismissed the suit on grounds of limitation and adverse possession - The appellate court remanded the case for fresh decision on these issues - Held that limitation and adverse possession are mixed questions of law and fact which require proper pleading and proof, and the appellate court's remand without setting aside the decree was improper (Paras 3-4). C) Civil Procedure - Appeal - Powers of Appellate Court - Section 96 of Code of Civil Procedure, 1908 - The appellate court's power to remand is governed by Order 41 Rule 23 and Rule 23A CPC - Held that a remand order must be based on the grounds specified in those provisions, and a mere disagreement with the trial court's findings does not justify remand (Paras 5-10).
Issue of Consideration
Whether the District Judge was justified in remanding the suit to the trial court for fresh decision without setting aside the judgment and decree of the trial court, and whether the remand order was legally sustainable.
Final Decision
The High Court allowed the appeal, set aside the order of remand dated 16.7.2013 passed by the District Judge-I, North Goa, at Panaji in Regular Civil Appeal No. 339 of 2010, and restored the judgment and decree dated 30.4.2001 passed by the Civil Judge, Junior Division, Ponda, dismissing Special Civil Suit No. 21/1984/A.
Law Points
- Order of remand must be based on valid grounds
- not on mere disagreement with trial court's findings
- Appellate court cannot remand suit without setting aside trial court's judgment and decree
- Limitation and adverse possession are mixed questions of law and fact
- Section 96 CPC allows appeal against decree
- not against findings
