Case Note & Summary
The appellant, Vishnu Dashrath Chavan, claimed ownership of a flat in Gitanjali Co-operative Housing Society and filed a suit for recovery of possession against his brother, the respondent, who was permitted to occupy the flat but refused to vacate. The respondent denied sole ownership and claimed a family arrangement. The trial court decreed the suit in favor of the appellant. The respondent appealed, and the Adhoc District Judge, Vasai, set aside the decree and remanded the suit for fresh trial. The appellant challenged this remand order in the High Court. The High Court examined the scope of remand powers under Order 41 Rules 23, 23A, and 25 CPC. It held that the appellate court's remand was not justified because the suit was not disposed of on a preliminary point (Rule 23), the appellate court did not find that retrial was necessary (Rule 23A), and the remand for a full retrial exceeded the limited remand under Rule 25. The High Court 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 Rules 23, 23A, 25 CPC - Scope of Remand Power - The appellate court set aside the trial court's decree and remanded the suit for fresh trial without satisfying conditions of remand provisions. Held that remand under Rule 23 is permissible only when suit disposed of on preliminary point; under Rule 23A when decree reversed and retrial necessary; under Rule 25 only for framing additional issues. The impugned order of remand was not justified as the appellate court did not find that the suit was disposed of on a preliminary point or that retrial was necessary. (Paras 9-14) B) Civil Procedure - Appellate Court - Remand - Order 41 Rule 23A CPC - Conditions for Remand - The appellate court must record satisfaction that the decree is reversed and retrial is necessary. In the present case, the appellate court merely observed that the trial court failed to consider certain aspects and remanded the suit. Held that such a remand is not permissible under Rule 23A as the appellate court did not find that the suit was disposed of on a preliminary point or that retrial was necessary. (Paras 11-14) C) Civil Procedure - Appellate Court - Remand - Order 41 Rule 25 CPC - Limited Remand - Under Rule 25, the appellate court can only frame additional issues and remit the suit for trial on those issues, not order a full retrial. The impugned order directing a fresh trial on all issues was beyond the scope of Rule 25. Held that the appellate court exceeded its jurisdiction by ordering a complete retrial. (Paras 12-14)
Issue of Consideration
Whether the appellate court was justified in remanding the suit for re-trial and decision afresh on merits.
Final Decision
The High Court allowed the appeal, set aside the impugned judgment and order dated 3rd May, 2014, and restored the appeal to the file of the Adhoc District Judge, Vasai for fresh disposal in accordance with law. The civil application is disposed of.
Law Points
- Remand under Order 41 Rule 23 CPC is permissible only when suit disposed of on preliminary point
- Remand under Order 41 Rule 23A CPC requires reversal of decree and retrial necessary
- Remand under Order 41 Rule 25 CPC limited to framing additional issues and retrial on those issues
- Appellate court cannot remand entire suit for fresh trial without satisfying conditions of remand provisions
