Rule 23 of Order XL1 of the Code empowers the appellate Court to remand a suit to the trial Court in a case when the suit was disposed of only upon a preliminary point and the decree of the trial Court is reversed in appeal.
Rule 25 of Order XL1 Of the Code empowers the appellate Court to frame an issue and remit it for trial which has been omitted to be framed and tried by the trial Court and which appears to the appellate Court essential to the right decision of the case on merits.
It is under Rule 23A of Order XL1, the first appellate Court is empowered to remand the whole suit to the trial Court for retrial, when the entire decree is reversed in appeal and a retrial is considered necessary.
The said provisions is extracted below:
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 retrial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23,”
From a bare reading of the above provisions it is clear that before an appellate Court can make an order of remand it should set aside the decision of the trial Court without examining the case on merit.
Case Law Reference
1. Remco Inds. Workers House Bldg. Co-operative Society Vs. Lakshmeesha M., AIR 2003 SC 3167
The Supreme Court remanded the suit under Order XL1 Rule 23A of the Code, only after deciding that the decision of the learned trial Court and the High Court in appeal were vitiated by law in not considering a relevant document exhibited by the defendant, resulting in an error of decision on an important issue of the matter.
2. Sanatan Saha Vs. Dilip Kumar Dutta [Calcutta High Court, 13-05-2016]
The first appellate Court has remanded the entire suit to the learned trial Court without deciding the judgment and decree passed by the learned trial Court on merit. This is not permissible in law and the learned first appellate Court has committed an error of law in sending back the suit to the learned trial Judge.