Case Note & Summary
The appellant, Mahadeo Ramchandra Chikate, filed Special Civil Suit No.31/2007 for specific performance of an agreement of sale dated 15.07.2006 concerning agricultural land Gat No.131/1 at village Parsoda, District Yavatmal. The respondent, Baliram Vithu Khaire, appeared but failed to file a written statement despite opportunities, and the suit was decreed ex parte on 23.03.2010. The respondent then filed First Appeal No.1126/2010 before the High Court under Section 96 CPC, along with Civil Application No.819/2011 for permission to file written statement at the appellate stage and Civil Application No.820/2011 for permission to file additional documents and affidavit evidence. The appellant opposed these applications. After the pecuniary jurisdiction of the District Court was enhanced, the appeal was transferred to the District Court at Kelapur and renumbered as Regular Civil Appeal No.23/2012. The District Judge dismissed the appeal on 13.02.2014 without deciding the pending applications. The respondent then filed Second Appeal No.125/2014 in the High Court, which remanded the matter back to the District Court on 28.04.2016 with a direction to decide the pending applications first. On remand, the District Judge, instead of deciding the applications, passed the impugned order dated 27.09.2016 remanding the entire suit to the trial court for fresh trial under Order 41 Rule 23 CPC. The appellant challenged this remand order in the present appeal. The High Court found that the District Judge had not reversed the decree of the trial court and had not recorded any finding that the decree was erroneous or that a retrial was necessary. The conditions for remand under Order 41 Rule 23 CPC were not satisfied. The High Court held that the District Judge had exceeded his jurisdiction and that the remand order was illegal. The High Court set aside the remand order and directed the District Judge to first decide the pending applications for filing written statement and additional evidence on their merits, and then dispose of the appeal in accordance with law. The appeal was allowed with no order as to costs.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23 CPC - Power of Appellate Court - The District Judge, while hearing the appeal, remanded the suit to the trial court for fresh trial without deciding the pending applications for permission to file written statement and additional evidence. The High Court held that the remand order was illegal and without jurisdiction as the District Judge did not reverse the decree and the conditions of Order 41 Rule 23 CPC were not satisfied. The matter was remitted back to the District Judge to decide the pending applications first and then dispose of the appeal in accordance with law. (Paras 7-10) B) Civil Procedure - Written Statement - Filing at Appellate Stage - Order 8 Rule 1 CPC - The respondent had filed an application for permission to file written statement at the appellate stage. The High Court directed the District Judge to consider this application on its own merits, keeping in view the law laid down by the Supreme Court, and then decide the appeal afresh. (Para 10) C) Civil Procedure - Additional Evidence - Order 41 Rule 27 CPC - The respondent also sought permission to file additional documents and affidavit evidence. The High Court directed the District Judge to decide this application in accordance with law before disposing of the appeal. (Para 10)
Issue of Consideration
Whether the District Judge was justified in remanding the suit to the trial court under Order 41 Rule 23 of the Code of Civil Procedure, 1908 without first deciding the pending applications for permission to file written statement and additional evidence.
Final Decision
The High Court allowed the appeal, set aside the impugned judgment and order dated 27.09.2016 passed by the District Judge, and remitted the matter back to the District Judge to decide the pending applications (Civil Application No.819/2011 and Civil Application No.820/2011) on their own merits and then dispose of the appeal in accordance with law. No order as to costs.
Law Points
- Remand under Order 41 Rule 23 CPC is permissible only when decree is reversed in appeal and retrial is necessary
- District Judge cannot remand suit without deciding pending applications for filing written statement and documents
- Appellate Court must decide all pending applications before disposing of appeal
