Case Note & Summary
The appellant, original plaintiff, filed a suit for declaration that a registered Will-Deed dated 12th August 2011 executed by her late husband was void and sought its cancellation. The respondent-defendant did not file a written statement, and the suit proceeded ex parte. The trial court decreed the suit on 12th November 2014. The respondent appealed under Section 96 CPC. The appellate court, without recording satisfaction that the trial court disposed of the suit on a preliminary point or that retrial was necessary, set aside the ex parte decree and remanded the suit to the trial court for fresh adjudication, solely to allow the respondent to file a written statement and contest the suit on merits. The appellant challenged this remand order under Order 43 Rule 1(u) CPC. The High Court held that the appellate court exceeded its jurisdiction under Order 41 Rule 23 CPC, as the conditions for remand were not satisfied. The proper course was for the respondent to seek setting aside of the ex parte decree under Order 9 Rule 13 CPC by showing sufficient cause for non-appearance. The High Court allowed the appeal, set aside the remand order, and restored the appeal to the appellate court for fresh disposal in accordance with law.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23, Code of Civil Procedure, 1908 - Appellate court set aside ex parte decree and remanded suit for fresh adjudication to allow respondent to file written statement - Held that remand under Order 41 Rule 23 is permissible only when trial court disposed of suit on preliminary point or decree is reversed in appeal and retrial is necessary; mere absence of written statement does not warrant remand - Appellate court ought to have considered application under Order 9 Rule 13 CPC for setting aside ex parte decree (Paras 5-6).
Issue of Consideration
Whether the appellate court was justified in remanding the suit to the trial court for fresh adjudication without properly setting aside the ex parte decree under Order 9 Rule 13 CPC.
Final Decision
Appeal allowed. The impugned order dated 12th November 2014 passed by the appellate court is set aside. The appeal before the appellate court is restored to its file for fresh disposal in accordance with law. No order as to costs.
Law Points
- Remand order under Order 41 Rule 23 CPC requires satisfaction of conditions
- appellate court cannot remand merely to give opportunity to file written statement
- ex parte decree can be set aside only on sufficient cause shown under Order 9 Rule 13 CPC
- appeal lies under Order 43 Rule 1(u) CPC against remand order.
Case Details
2017 LawText (BOM) (03) 164
Appeal from Order No. 3 of 2017
Mr. R.D. Bhuibhar for the appellant; respondent served but unrepresented.
Smt. Shobha widow of Suresh Kurekar
Shri Mohan son of Suresh Kurekar
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Nature of Litigation
Appeal against remand order in a civil suit for declaration and cancellation of a Will.
Remedy Sought
Appellant (original plaintiff) sought setting aside of the appellate court's remand order and restoration of the trial court's decree.
Filing Reason
Appellate court remanded the suit to trial court for fresh adjudication to allow respondent to file written statement, without proper grounds under Order 41 Rule 23 CPC.
Previous Decisions
Trial court decreed the suit ex parte on 12th November 2014; appellate court set aside decree and remanded the suit.
Issues
Whether the appellate court was justified in remanding the suit under Order 41 Rule 23 CPC without satisfying the conditions for remand.
Whether the proper remedy for the respondent was to seek setting aside of ex parte decree under Order 9 Rule 13 CPC.
Submissions/Arguments
Appellant argued that the suit proceeded ex parte and the respondent could have moved an application under Order 9 Rule 13 CPC to set aside the ex parte decree, but instead the appellate court erroneously remanded the suit without jurisdiction.
Ratio Decidendi
An appellate court can remand a suit under Order 41 Rule 23 CPC only when the trial court disposed of the suit on a preliminary point or when the decree is reversed in appeal and retrial is necessary. Mere absence of a written statement or desire to give an opportunity to file one does not justify remand. The proper remedy for a defendant against an ex parte decree is to apply under Order 9 Rule 13 CPC for setting it aside on sufficient cause.
Judgment Excerpts
The appellate Court was of the view that the respondent had sufficient reason for not appearing before the trial Court on the date of hearing and therefore, ex parte decree passed against him was liable to be set aside.
The appellate Court has not recorded its satisfaction that the suit was disposed of by the trial Court on a preliminary point nor has it recorded that the decree passed by the trial Court is reversed in appeal and retrial is necessary.
In the absence of such satisfaction, the appellate Court could not have remanded the suit to the trial Court for fresh adjudication.
Procedural History
Original plaintiff filed suit for declaration and cancellation of Will. Defendant did not file written statement; suit proceeded ex parte and was decreed on 12th November 2014. Defendant appealed under Section 96 CPC. Appellate court set aside decree and remanded suit for fresh adjudication. Plaintiff appealed under Order 43 Rule 1(u) CPC to High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order 41 Rule 23, Order 43 Rule 1(u), Order 9 Rule 13, Section 96
