Case Note & Summary
The appellant (defendant) challenged the judgment and decree dated 14.08.2012 passed by the Senior Civil Judge, Shorapur, in R.A.No.11/2011, which allowed the respondent's (plaintiff) appeal and remanded the matter to the trial court. The plaintiff had filed O.S.No.164/2009 for declaration and injunction regarding suit lands Sy.Nos.12/1 and 12/5, claiming ownership through inheritance from her mother Maremma. The defendant allegedly dispossessed her and got his name entered in revenue records. The trial court dismissed the suit. The First Appellate Court, without deciding the appeal on merits, set aside the trial court's decree and remanded the matter. The High Court held that the First Appellate Court exceeded its powers under Order XLI Rule 23 CPC, as it did not reverse the decree or record satisfaction that the decree was unsustainable. The appellate court should have reappreciated evidence under Order XLI Rule 24 CPC and decided the appeal on merits. The High Court allowed the appeal, set aside the remand order, and directed the First Appellate Court to decide R.A.No.11/2011 afresh on merits within six months.
Headnote
A) Civil Procedure - Remand - Order XLI Rule 23 CPC - First Appellate Court's Power - The First Appellate Court can remand a case only if the decree is reversed in appeal and retrial is necessary; it must record satisfaction that the decree is unsustainable. In this case, the appellate court remanded without deciding the appeal on merits, which is impermissible. (Paras 5-7)
B) Civil Procedure - First Appeal - Duty to Reappreciate Evidence - Order XLI Rule 24 CPC - The First Appellate Court is the final court of fact and must reappreciate evidence and decide the appeal on merits. Remand should be avoided unless the trial court's judgment is wholly unsustainable. (Paras 5-7)
Issue of Consideration
Whether the First Appellate Court was justified in remanding the matter to the trial court without deciding the appeal on merits under Order XLI Rule 24 CPC.
Final Decision
The High Court allowed the appeal, set aside the judgment and decree dated 14.08.2012 passed by the Senior Civil Judge, Shorapur, in R.A.No.11/2011, and directed the First Appellate Court to decide the appeal afresh on merits within six months from the date of receipt of the copy of the judgment.
Law Points
- Order XLI Rule 23 CPC
- Order XLI Rule 24 CPC
- Remand powers
- First Appellate Court's duty to reappreciate evidence
- Scope of remand
Case Details
2018 LawText (KAR) (12) 29
Sri J. Augustin, Sanjay A. Patil (for appellant); Sri R.S.Sidhapurkar (for respondent)
Hanmanthraya S/o Bhimraya
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Nature of Litigation
Civil appeal against remand order in a property dispute involving declaration and injunction.
Remedy Sought
Appellant (defendant) sought to set aside the judgment and decree of the First Appellate Court which remanded the matter to the trial court.
Filing Reason
The First Appellate Court allowed the plaintiff's appeal and remanded the case without deciding the appeal on merits.
Previous Decisions
Trial court dismissed the suit O.S.No.164/2009 on 28.03.2011. First Appellate Court in R.A.No.11/2011 set aside the trial court's decree and remanded the matter on 14.08.2012.
Issues
Whether the First Appellate Court was justified in remanding the matter without deciding the appeal on merits under Order XLI Rule 24 CPC.
Submissions/Arguments
Appellant argued that the First Appellate Court exceeded its powers by remanding the case without reversing the decree or recording that the decree was unsustainable.
Respondent supported the remand order.
Ratio Decidendi
The First Appellate Court, while hearing an appeal against the trial court's decree, must decide the appeal on merits by reappreciating evidence under Order XLI Rule 24 CPC. Remand under Order XLI Rule 23 CPC is permissible only when the decree is reversed in appeal and retrial is necessary; the appellate court must record satisfaction that the decree is unsustainable. In this case, the appellate court remanded without such satisfaction, which is illegal.
Judgment Excerpts
The First Appellate Court has not decided the appeal on merits. It has simply set aside the judgment and decree of the trial Court and remanded the matter. The First Appellate Court ought to have decided the appeal on merits by reappreciating the evidence on record.
The First Appellate Court has exceeded its jurisdiction in remanding the matter without recording its satisfaction that the decree is unsustainable.
Procedural History
Plaintiff filed O.S.No.164/2009 for declaration and injunction, which was dismissed by the trial court on 28.03.2011. Plaintiff appealed in R.A.No.11/2011 before the Senior Civil Judge, Shorapur, who allowed the appeal and remanded the matter on 14.08.2012. Defendant filed MSA No.1027/2013 before the High Court of Karnataka, Kalaburagi Bench, which allowed the appeal on 18.12.2018.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order XLI Rule 23, Order XLI Rule 24, Order XLIII Rule 1(u)
