Civil P.C. 1908 – O. 41 R. 23A – Remand – Invocation of power under – twin conditions – to invoke the power, vested in an appellate court, to remand a case, twin satisfactions will have to be arrived at. Firstly, the appellate court, on an analysis of the facts and on applying the principles of law, should find that the decree is to be reversed. Only after taking such a decision, the appellate court can step into the next arena. Second condition to be satisfied for invoking the power is that, the appellate court on merits, should find that a retrial is essential for the complete adjudication of the lis between the parties. If only these two conditions are satisfied, a remand under Order XLI Rule 23-A of the Code could be legally justified. Merely on establishing any one of the conditions mentioned above, an appellate court shall not remand a case to the lower court. In other words, these twin conditions are conjunctive and not disjunctive.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. HARIPRASAD, J.
F.A.O. (R.O.)No.341 of 2014
Dated this the 20th day of July, 2016
AGAINST THE JUDGMENT IN A.S. 51/2012 of SUB COURT, PALA DATED 27-10-2014 AGAINST JUDGMENT IN O.S.NO.21/2010 OF THE COURT OF MUNSIFF,PALA
JOHN V. AUGUSTINE
BY ADV. SRI.M.NARENDRA KUMAR
RESPONDENT(S)/APPELLANTS & 2ND RESPONDENT/DEFENDANTS
M.R. RENJAN AND 4 OTHERS
R1-R4 BY ADV. SRI.G.SREEKUMAR (CHELUR) R5 BY ADV. SRI.P.S.GEORGE SRI.K.C.VINCENTS
Plaintiff in O.S.No.21/2010 before the Court of Munsiff, Pala, a suit for injunction simplicitor, is the appellant. He challenges the lower appellate court’s judgment and decree, whereby the decree in the suit was set aside and the matter was remanded to the trial court for jointly trying with another suit pending before it.
2. For clarity of expression, the parties are hereinafter referred to as the “plaintiff” and “defendants”. The suit was decreed by the trial court, granting a permanent prohibitory injunction decree, restraining the defendants from trespassing into the plaint item Nos.1 and 2 properties and from using any portion of the said properties as a pathway.
3. In the appeal, the lower appellate court found that O.S.No.18 of 2010 pending before the trial court should have been tried with this case. It further found that the defendants suffered prejudice on account of the fact that the suits were not tried together.
4. Subject matter in these two suits is said to be a pathway. According to the plaintiff, there is a public pathway running through the plaint item No.3, lying on the southern side of plaint item No.1 and 2. Plaint item No.3 belongs to the defendants. Per contra, the defendants contended that the public pathway is running thorough the plaintiff’s property.
5. It is contended by the plaintiff that, a pathway originating from a public road on the western side of the plaint item No.1 and 2 passes through the northern side of the first defendant’s property and it reaches on the bank of a water channel. There is a small bridge provided for crossing the water channel towards east and the way then proceeds further. The plaintiff further contended that, this way is a public way. The defendants are trying to shift the way to the northern side, so as to save their property and to grab a portion of the plaintiff’s land for using as a public way.
6. First defendant contended that the plaintiff attempted to block the public way running through the southern portion of his property. Hence, a suit under
# Section 91 of the Code of Civil Procedure, 1908
(the Code, for short) has been filed seeking a permanent prohibitory injunction against the plaintiff and it is pending as O.S.No.18 of 2010.
7. It is an admitted fact that, at the time when this suit was heard and disposed of, O.S.No.18/2010 was pending. Learned counsel for the plaintiff contended that an application under Section 151 of the Code for joint trial was filed by the plaintiff before the trial court. It was dismissed by the court as the defendants stiffly opposed the petition. Countering the application, they contended that all the parties in O.S.No.21/2010 are not parties to O.S.No.18/2010. They further contended that the nature of reliefs claimed in both the suits are different. However, the joint trial application was dismissed by the trial court after hearing both sides. The question then arises for consideration is, whether remand of the case for joint trial at the instance of the defendants is legally allowable, that too without considering the legal principles?
8. Heard Sri.M.Narendra Kumar, the learned Counsel appearing for the plaintiff and Sri.G. Sreekumar the learned Counsel appearing for the defendents.
9. Sri.Narendra Kumar contended that the remand order is unsustainable, both on facts and law. According to him, the plaintiff, with all earnestness, attempted to get the suits jointly tried. However, that was strongly opposed by the defendants and they got the application dismissed. Thereafter, when the suit was decreed, they raised a ground before the lower appellate court that, the trial court should have tried these two suits jointly. According to Sri.Narendra Kumar, they are estopped from raising such a grievance before the lower appellate court.
10. Controverting this argument, Sri.G. Sreekumar submitted that, it was an unwise decision on the part of the defendants to oppose the joint trial application. Nonetheless, it may not legally preclude the court from allowing it, if it was required in the interest of justice. According to Sri.G.Sreekumar, some common questions of fact and law arise in these cases and ideally they should have been jointly tried. It is further submitted by him that, a specific ground was taken in the appeal memorandum before the lower appellate court pointing out the miscarriage of justice resulted by trying the suits separately.
11. It is true that, the defendants opposed the application filed by the plaintiff for joint trial of O.S.No.18/2010 with O.S.No.21/2010. It is conceded by both sides that the application was filed on the eve of the trial. That would have been a prominent reason to disallow the application. By no streach of reasoning, it can be found that the opposition offered by the defendants was justifiable. But, in a given case, if such an order is essential for the ends of justice and for adjudicating the whole issues between the parties, the court is not powerless to order a joint trial.
12. Now, I shall consider the legality of the impugned judgment making a remand. Order XLI Rules 23, 23-A and 25 of the Code are the provisions governing the appellate court’s power to remand a case. Powers under Order XLI Rule 23 of the Code arises, where a court from whose decree an appeal is preferred, has disposed of the suit upon a preliminary point and where the appellate court decides to reverse the decree. In the case on hand, such a situation does not arise.
13. Power vested in an appellate court under Rule 25 of Order XLI of the Code could be exercised if it finds that the trial court has omitted to frame or try any issue or to determine any question of fact, which is essential to the right decision of the suit upon merits. In that case, the appellate court may, if necessary, frame issues and refer the same to the trial court from whose decree the appeal is preferred. After taking additional evidence, as directed by the court, the trial court shall return the evidence to the appellate court together with its findings thereon and the reasons therefore. That type of a remand is not involved in this case.
14. The legal provision applicable to this case is one under Order XLI Rule 23-A of the Code. It reads as follows:
# 23-A. Remand in other cases
Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.”
15. This provision was inserted in the Code by Act 104 of 1976 with effect from 01.02.1977. Before its introduction, the appellate court could have remanded a case to the trial court when it was decided on a preliminary point and the appellate court reversed the decree in appeal and decided to direct the court below to try all issues arising in the case and also when the appellate court found that there was an omission by the trial court in framing or trying any issue essential for the right decision of the suit on merits. However, by adding Rule 23-A to Order XLI, the power to remand, vested in an appellate court, has been considerably enhanced. Even in a case, which is not decided on a preliminary point, when the decree is reversed in appeal and the appellate court thinks for legally valid reasons that a retrial is necessary, it shall have the same powers of remand, as under Rule 23 of Order XLI of the Code.
16. Before the insertion of Order XLI Rule 23-A in the Code, a Constitution Bench of the Supreme Court in Civil Appeal No.618/1960,
# A. Sankara Ramayya v. M.S.Lakshminarayanamoorthi and Others
in (decided on 14.11.1962) held as follows:
“An order remanding a proceeding may ordinarily be made under O.41, R.23 of the Code of Civil Procedure when the Trial Court has decided the case on a preliminary point and the appellate court reverses the decision of the Trial Court. An order of retrial after remand may also be made in exercise of the inherent jurisdiction of the Court where the Court of appeal is satisfied that there has been no proper trial or no complete or effectual adjudication of the proceeding and the party complaining of the error or omission or irregularity has suffered material prejudice on that account. Such an order may also be made to prevent abuse of the process of Court. But power to order retrial after remand, where there has already been a trial on evidence before the Court of first instance, cannot be exercised merely because the Appellate Court is of the view that the parties who could lead better evidence in the court of first instance have failed to do so. A trial de novo, after setting aside a final order passed by the Court of first instance may therefore be made in exceptional circumstances, where there has been no real trial of the proceeding, or where allowing the order to stand would result in abuse of the process of Court. the District Court did not decide the appeals on the merits, but merely ordered that the cases be remanded for retrial. In so ordering, in our judgment, the District Court acted illegally and with material irregularity in the exercise of its jurisdiction. Manifestly neither the statutory jurisdiction nor the inherent jurisdiction of the Court to direct a rehearing and retrial could be invoked.”
It is curious to note that, this decision of the Constitution Bench was not reported in any leading Law Journal. Considering the importance of the principles in the decision, it was reported in the official journal of the Kerala Judicial Academy, titled ‘Journal Vision’ (see 2009 (1) JV 1).
17. By the insertion of Rule 23-A to Order XLI of the Code, there is perceivable enlargement in the appellate court’s power to remand. But still the fundamental principle that a remand shall not be made for a mere asking remains unchanged. Even after the Amendment Act 104 of 1976, many decisions of the Apex Court reiterated the principle that remand of the case by the appellate court shall not be done as a matter of course. It bas been held in
# Purushotham Reddy & Anr. v. M/s.Pratap Steels Ltd., AIR 2002 SC 771
that, an appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or 23A or Rule 25 of Order XLI of the Code. An unwarranted order of remand gives the litigant an undeserved lease of life and therefore must be avoided. It is therefore clear that an appellate Judge should possess the ability and wisdom to foresee the difficulties and prejudices that is likely to be suffered by a party, who will be compelled to fight another round of litigation in an inferior court. Remand of a case shall be made only when compelling legal grounds exist and it becomes necessary to do complete justice between the parties.
18. On a close reading of Rule 23-A of Order XLI of the Code it will be evident that, to invoke the power, vested in an appellate court, to remand a case, twin satisfactions will have to be arrived at. Firstly, the appellate court, on an analysis of the facts and on applying the principles of law, should find that the decree is to be reversed. Only after taking such a decision, the appellate court can step into the next arena. Second condition to be satisfied for invoking the power is that, the appellate court on merits, should find that a retrial is essential for the complete adjudication of the lis between the parties. Well settled is the proposition of law that whether the court should or should not remand a case is one of discretion. Surely, the discretion has to be exercised on sound and reasonable premises and guided by judicial principles. If only these two conditions are satisfied, a remand under Order XLI Rule 23-A of the Code could be legally justified. Merely on establishing any one of the conditions mentioned above, an appellate court shall not remand a case to the lower court. In other words, these twin conditions are conjunctive and not disjunctive.
19. My view is fortified by certain observations made by the Supreme Court in
# Muncipal Corporation, Hyderabad v. Sunder Singh, (2008) 8 SCC 485
Although the facts are different, the principle of law stated in paragraph 32 and 33 may be useful. Insofar as a remand under Order XLI Rule 23 of the Code is concerned, it can be called a restricted or limited remand. An order of remand passed by an appellate court by invoking Order XLI Rule 23-A of the Code is wider in scope. These aspects have been clarified by the Supreme Court in the above mentioned decision.
20. I have carefully perused the impugned judgment. Learned Sub Judge has not at all considered the contentions on merits. He has not applied his mind to the questions of fact and law involved in the case. When it was brought to the notice of the lower appellate court that, another suit in respect of the same subject matter, having similarity in the contentions and commonality of the parties, is pending before the trial court, the lower appellate court mechanically remanded the case. The lower appellate court should have applied its mind to the facts and circumstances of the case and should have firstly decided if reversal of the decree was essential. And then only it should have examined whether a retrial was necessary. In the absence of any such finding in the impugned judgment, I am of the view that invocation of power under Order XLI Rule 23-A of the Code by the lower appellate court was improper and therefore legally unsustainable.
21. The submission of the learned counsel for the defendants that they would suffer prejudice if both the suits were separately tried is a matter to be decided by the court concerned after deciding whether the decree under challenge is liable to be reversed. For the above reasons, I am constrained to set aside the judgment of the lower appellate court and remand the case to the trial court.
In the result, the appeal is allowed. The impugned judgment is set aside. The matter is remitted back to the lower appellate court. It shall consider the entire matters on merit and take a decision in the appeal, bearing in mind the above mentioned principles. It is made clear that no fetter is created by this judgment in the power of the lower appellate court to invoke its jurisdiction under Order XLI Rule 23-A of the Code, if the conditions mentioned above are satisfied. The parties are directed to appear before the lower appellate court on 16.08.2016.