Case Note & Summary
The present miscellaneous second appeal was filed by the appellants/defendants challenging the judgment and decree dated 31.01.2013 passed by the Fast Track Court, Jamakhandi, in R.A.No.25/2008, whereby the First Appellate Court remanded the matter to the trial Court for fresh consideration. The dispute between the parties pertained to an 'AB' wall of the defendants. The plaintiff had filed a suit for mandatory injunction and perpetual injunction against the defendants. The trial Court had decreed the suit in favor of the plaintiff. Aggrieved, the defendants filed an appeal before the First Appellate Court. The First Appellate Court, without reversing or setting aside the decree of the trial Court, remanded the matter back to the trial Court for fresh consideration. The appellants/defendants challenged this remand order before the High Court. The High Court examined the provisions of Order 41 Rule 23, Order 41 Rule 23-A, and Order 41 Rule 25 of the Code of Civil Procedure, 1908. The Court noted that the First Appellate Court had not recorded any satisfaction that the judgment of the trial Court was reversed or set aside, nor did it find that the trial Court had failed to frame issues or decide the suit on merits. The High Court held that the remand order was without jurisdiction and that the First Appellate Court could have, if necessary, framed additional issues and remitted them to the trial Court for evidence under Order 41 Rule 25 CPC. Consequently, the High Court allowed the appeal, set aside the impugned judgment and decree of the First Appellate Court, and restored the appeal to the file of the First Appellate Court for fresh disposal in accordance with law. The parties were directed to appear before the First Appellate Court on a specified date.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23, Code of Civil Procedure, 1908 - First Appellate Court's Power - The First Appellate Court remanded the suit to the trial Court without reversing or setting aside the decree and without recording that the trial Court's judgment was defective or that it failed to frame issues or decide the suit on merits. Held that the remand order was without jurisdiction and liable to be set aside. (Paras 3-5) B) Civil Procedure - Remand - Order 41 Rule 23-A, Code of Civil Procedure, 1908 - Conditions for Remand - The First Appellate Court must record satisfaction that the judgment was reversed or set aside and that the trial Court failed to frame issues or decide the suit on merits. In the absence of such satisfaction, the remand order is invalid. (Paras 4-5) C) Civil Procedure - Remand - Order 41 Rule 25, Code of Civil Procedure, 1908 - Alternative to Remand - The First Appellate Court could have framed additional issues and remitted them to the trial Court for evidence, instead of remanding the entire suit. Held that the appellate court should have exercised power under Order 41 Rule 25 CPC. (Para 5)
Issue of Consideration
Whether the First Appellate Court was justified in remanding the matter to the trial Court under Order 41 Rule 23 CPC without reversing or setting aside the decree and without recording satisfaction that the judgment was defective or that the trial Court failed to frame issues or decide the suit on merits.
Final Decision
The High Court allowed the appeal, set aside the impugned judgment and decree dated 31.01.2013 passed by the Fast Track Court, Jamakhandi, in R.A.No.25/2008, and restored the appeal to the file of the First Appellate Court for fresh disposal in accordance with law. The parties were directed to appear before the First Appellate Court on 21.03.2022.
Law Points
- Order 41 Rule 23 CPC
- Order 41 Rule 23-A CPC
- Order 41 Rule 25 CPC
- Remand
- Jurisdiction of First Appellate Court
- Mandatory Injunction
- Perpetual Injunction
