The High Court
Case Details
115 In the High Court of Punjab and Haryana, at Chandigarh Second Appeal Order No. 27 of 2019 (O&M) Date of Decision: 28.01.2025 ... Appellant(s) ... Respondent(s) Jeet Singh Mukhtiar Singh and Others Versus CORAM: Hon'ble Mr. Justice Anil Kshetarpal. Present:
Legal Reasoning
Mr. Inderjeet Singh Brar, Advocate for the appellant(s). Mr. Surinder Garg, Advocate for respondent No.1. Anil Kshetarpal, J. CM-8134-CII-2019 1. For the reasons stated in the application, the same is allowed and delay of 213 days in filing the appeal is condoned. CM-8132-CII-2019 2. For the reasons stated in the application, the same is allowed and delay of 24 days in refiling the appeal is condoned. SAO-27-2019 3. This second appeal has been filed by the defendant No.1 to assail the correctness of the First Appellate Court’s order remitting the case back to the Trial Court for deciding afresh. 4. The First Appellate Court has observed that the objections to the Local Commissioner’s report have not been decided and the demarcation DEEPAK KUMAR BHARDWAJ 2025.01.31 14:28 I attest to the accuracy and integrity of this document Second Appeal Order No. 27 of 2019 (O&M) 2 report was not valid. Hence, the elaborate judgment passed by the Trial Court was set aside. 5. The enabling power of the Appellate Court to remit the matter back to the Lower Court is regulated by Order XLI Rules 23 and 23A of the Code of Civil Procedure, 1908, which has been explained by the Supreme Court in P.Purushottam Reddy and Another v. Pratap Steels Ltd. (2002) 2 SCC 686 in the following manner:- “10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand in as much as the subordinate court can try only such issues as are referred to it for trial and having done so the evidence recorded together with findings and reasons therefore of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand it such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 11 of the CPC. In cases where additional evidence is DEEPAK KUMAR BHARDWAJ 2025.01.31 14:28 I attest to the accuracy and integrity of this document Second Appeal Order No. 27 of 2019 (O&M) 3 required to be taken in the event of any one of the clause of Sub- rule (1) of Rule 27 being attracted such additional evidence oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra v. Sushila (AIR 1965 SC 365 at p. 399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand de hors the Rules 23 and 23A. To wit the superior court, if it finds that the judgment under appeal has
Decision
not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 11 Rule 31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided.” 6. It is evident that the First Appellate Court has neither set aside DEEPAK KUMAR BHARDWAJ 2025.01.31 14:28 I attest to the accuracy and integrity of this document the Trial Court’s judgment by giving any reasoning nor concluded that retrial Second Appeal Order No. 27 of 2019 (O&M) 4 of the case is necessary. In these circumstances, the order passed by the First Appellate Court is not sustainable. It is always open to the Appellate Court to get the property re-demarcated, however, it cannot be a ground to set aside the elaborate judgment passed by the Trial court. 7. Keeping in view the aforesaid facts, the present appeal is allowed and the impugned judgment passed by the First Appellate Court is set aside. The first appeal filed by the plaintiff is restored to its original number. The parties, through their learned counsel, are directed to appear before the First Appellate Court on 28.02.2025. 8. The miscellaneous application(s) pending, if any, shall stand disposed of. (Anil Kshetarpal) Judge January 28, 2025 “DK” Whether speaking/reasoned :Yes/No Whether reportable : Yes/No DEEPAK KUMAR BHARDWAJ 2025.01.31 14:28 I attest to the accuracy and integrity of this document