Case Note & Summary
The appellants, as plaintiffs, filed a suit for declaration of ownership, possession, and permanent injunction in respect of suit schedule property. The defendants did not appear and were placed exparte. The trial court recorded evidence of one plaintiff as PW.1 and decreed the suit on 24.12.2005. The defendants filed a petition under Order 9 Rule 13 CPC to set aside the exparte decree, which was dismissed as time barred. The defendants then filed an appeal under Section 96 CPC against the decree. The first appellate court allowed the appeal, set aside the trial court's judgment and decree, and remanded the suit to the trial court for fresh disposal. The plaintiffs challenged the remand order in this miscellaneous second appeal under Order 43 Rule 1(u) CPC. The High Court held that the first appellate court acted without jurisdiction in ordering remand. Under Order 41 Rule 23 CPC, remand is permissible only when the trial court disposed of the suit on a preliminary point without recording findings on other issues. Here, the trial court had recorded evidence and decreed the suit on merits. The first appellate court could not remand merely because it disagreed with the trial court's appreciation of evidence. The High Court allowed the appeal, set aside the remand order, and directed the first appellate court to restore the appeal to its file and decide it on merits in accordance with law.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23 CPC - Jurisdiction - First appellate court set aside trial court's decree and remanded suit for fresh disposal - Held that remand under Order 41 Rule 23 CPC is permissible only when trial court disposed of suit on a preliminary point without recording findings on other issues - Since trial court had recorded evidence and decreed suit, remand was without jurisdiction - Appeal allowed, remand order set aside (Paras 6-8). B) Civil Procedure - Exparte Decree - Setting Aside - Order 9 Rule 13 CPC - Limitation - Defendants' petition to set aside exparte decree was dismissed as time barred - First appellate court could not indirectly set aside decree by ordering remand - Held that appellate court must decide appeal on merits, not order remand without jurisdiction (Paras 4-6).
Issue of Consideration
Whether the first appellate court was justified in remanding the suit to the trial court under Order 41 Rule 23 CPC when the trial court had decreed the suit after recording evidence and not on a preliminary point.
Final Decision
Appeal allowed. The judgment and decree dated 20.2.2014 passed in R.A.34/2013 by the Principal District and Sessions Judge, Chitradurga, is set aside. The first appellate court is directed to restore the appeal to its file and decide it on merits in accordance with law, after giving opportunity to both parties.
Law Points
- Remand under Order 41 Rule 23 CPC is permissible only when trial court disposed of suit on preliminary point without recording findings on other issues
- First appellate court cannot remand suit merely because it disagrees with trial court's appreciation of evidence
- Order 41 Rule 23A CPC allows remand only if trial court failed to frame issues or record findings on all issues
- Remand order without jurisdiction is liable to be set aside
