Case Note & Summary
The appellant (original plaintiff) filed Regular Civil Suit No.1900/2012 (Old Special Civil Suit No.535/2008) for mandatory injunction and recovery of damages in lieu of licence fee with interest against the respondent (original defendant). The plaintiff claimed that on 16.2.2006, the defendant executed a registered agreement of leave and licence for the suit property for 12 months from 16.2.2006 to 15.2.2007 at a licence fee of Rs.9000/- per month. As the licence fee was not paid after 15.9.2006, the plaintiff filed the suit. The trial court decreed the suit on 30.3.2013. The defendant filed Regular Civil Appeal No.138/2013, which was allowed on 30.9.2014 by the appellate court, setting aside the judgment and decree of the trial court and remanding the matter to the trial court with directions to frame proper issues and decide the suit afresh after giving sufficient opportunity to the parties. The plaintiff filed the present Appeal from Order against this remand order. The High Court examined the appellate court's power of remand under Order XLI Rules 23, 23-A, and 25 of the Code of Civil Procedure, 1908. It held that the appellate court's order of remand was not justified because the case did not fall under Order XLI Rule 23 (where a decree is reversed in appeal and retrial is necessary) or Rule 23-A (where remand is necessary in certain cases). The appellate court had not decided the appeal on merits but simply set aside the decree and remanded the matter. The High Court observed that the appellate court should have either decided the appeal on merits or, if it found that the trial court had not framed proper issues, it could have framed additional issues under Order XLI Rule 25 and remitted the evidence on those issues. The High Court allowed the appeal, set aside the remand order, and directed the appellate court to decide the appeal afresh on merits in accordance with law, without being influenced by any observations made in the impugned order. The civil application was disposed of accordingly.
Headnote
A) Civil Procedure - Remand - Order XLI Rule 23, 23-A, 25 CPC - Appellate Court's Power - The appellate court set aside the decree and remanded the suit for framing proper issues and fresh decision, without deciding the appeal on merits. Held that the appellate court exceeded its jurisdiction as the case did not fall under Order XLI Rule 23 or 23-A CPC, and the appellate court should have decided the appeal on merits or, if necessary, framed additional issues under Order XLI Rule 25 CPC. (Paras 1-10) B) Civil Procedure - Suit for Mandatory Injunction and Damages - Licence Agreement - The plaintiff claimed mandatory injunction and damages for non-payment of licence fee under a registered agreement of leave and licence. The trial court decreed the suit. The appellate court remanded the matter. Held that the appellate court's order of remand was improper and the appeal was allowed, setting aside the remand order and directing the appellate court to decide the appeal afresh on merits. (Paras 2-10)
Issue of Consideration
Whether the appellate court was justified in setting aside the decree and remanding the matter to the trial court for framing proper issues and fresh decision, without deciding the appeal on merits.
Final Decision
The High Court allowed the appeal, set aside the impugned order dated 30.9.2014 passed by the appellate court, and directed the appellate court to decide Regular Civil Appeal No.138/2013 afresh on merits in accordance with law, without being influenced by any observations made in the impugned order. The civil application was disposed of accordingly.
Law Points
- Order XLI Rule 23 CPC
- Order XLI Rule 23-A CPC
- Order XLI Rule 25 CPC
- Remand
- Jurisdiction of Appellate Court
- Suit for Mandatory Injunction and Damages
- Licence Agreement
- Registered Agreement of Leave and Licence
