Case Note & Summary
The case arises from a matrimonial dispute where the respondent-wife filed a divorce petition under Section 13(1)(i)(ia) of the Hindu Marriage Act, 1955. The appellant-husband filed a counterclaim seeking divorce on the ground of adultery. The wife withdrew her original petition, but the trial Court directed that the counterclaim would continue. The wife did not participate in the counterclaim proceedings, and the trial Court passed a decree for divorce on 21.11.2014 dissolving the marriage on the ground of adultery. The wife appealed, and the appellate Court set aside the decree and remanded the proceedings for fresh trial, observing that the wife should be given an opportunity to contest the counterclaim on merits. The husband appealed to the High Court. The High Court considered whether the appellate Court could remand the case under Order 41 Rule 23A CPC without entering into the merits of the trial Court's adjudication. The appellant argued that such a remand was not permissible under Order 41 Rule 23A, relying on the Supreme Court judgment in P. Purushottam Reddy and another vs. Pratap Steels Ltd., (2002) 2 SCC 686. The respondent supported the remand, contending that she could not participate in the counterclaim. The High Court held that Order 41 Rule 23A requires the appellate Court to first reverse or set aside the decree on merits and record a finding that the suit was disposed of on a preliminary point without deciding all issues. Since the appellate Court did not do so, the remand was not justified. The High Court allowed the appeal, set aside the remand order, and directed the appellate Court to decide the appeal on merits in accordance with law.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23A CPC - Power of Appellate Court to Remand - The appellate Court cannot remand a case under Order 41 Rule 23A without first reversing or setting aside the decree on merits and recording a finding that the suit was disposed of on a preliminary point without deciding all issues - The mere fact that the respondent could not participate in the counterclaim proceedings is not a ground for remand under this provision (Paras 2, 6-7).
Issue of Consideration
Whether the provisions of Order 41 Rule 23A of the Code of Civil Procedure, 1908 can be invoked by the appellate Court for remanding the proceedings without entering into the merits of the adjudication by the trial Court.
Final Decision
Appeal allowed. Impugned order dated 23.01.2017 set aside. Appellate Court directed to decide the appeal on merits in accordance with law. No order as to costs.
Law Points
- Order 41 Rule 23A CPC
- Remand without deciding merits
- Appellate Court's power to remand
- Counterclaim in divorce proceedings
