Case Note & Summary
The appellants (original plaintiffs) filed Special Civil Suit No. 135 of 1996 seeking partition and separate possession of suit property, and a declaration that a Will dated 23.10.1990 was illegal and void. The respondent (original defendant) claimed ownership based on that Will. During the suit, the defendant's advocate filed a no-instructions pursis on 29.6.1999, which was accepted by the trial court. The suit was then proceeded ex parte under Order 17 Rule 2 CPC, and the trial court partly decreed the suit on 23.11.1999. The defendant appealed to the District Court (Regular Civil Appeal No. 107 of 2000). The learned Adhoc District Judge, Wardha, by judgment dated 5.11.2014, found that the trial court's judgment and decree were not valid in law because the defendant was deprived of the opportunity to lead evidence. The appellate court remanded the suit to the trial court for a fresh decision after giving both parties an opportunity to adduce evidence. The plaintiffs appealed to the High Court. The High Court considered whether the first appellate court had correctly exercised its power under Order 41 Rule 23A CPC. The appellants argued that the appellate court could have decided the appeal on merits based on the available evidence, and that remand would cause hardship and unsettle vested rights. The respondent supported the remand order. The High Court held that the trial court had not given the defendant any opportunity to lead evidence, and the appellate court could not decide the appeal on merits without such evidence. The remand was therefore justified to prevent a miscarriage of justice. The High Court dismissed the appeal, upholding the remand order.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23A Code of Civil Procedure, 1908 - Appellate Court's Power to Remand - The first appellate court remanded the suit for fresh trial after finding that the trial court had decreed the suit without giving the defendant an opportunity to lead evidence, as the defendant's counsel had filed a no-instructions pursis and the suit was proceeded ex parte under Order 17 Rule 2 CPC. The High Court held that the remand was justified because the trial court's judgment was not a proper judgment in law, and the appellate court could not decide the appeal on merits without evidence from the defendant. (Paras 6-8)
Issue of Consideration
Whether the first appellate court was justified in remanding the suit to the trial court under Order 41 Rule 23A of the Code of Civil Procedure, 1908, when the trial court had decreed the suit ex parte without affording the defendant an opportunity to lead evidence.
Final Decision
The High Court dismissed the appeal, upholding the remand order of the first appellate court. The suit is to be decided afresh by the trial court after giving both parties an opportunity to adduce evidence.
Law Points
- Remand under Order 41 Rule 23A CPC is permissible when the lower court disposes of a suit without giving an opportunity to the defendant to lead evidence
- even if the suit was not remanded on a preliminary point
- the appellate court has discretion to remand for fresh trial to prevent miscarriage of justice.
