Bombay High Court
Balkrishna Dattatraya Butte and others
Versus
Dattatraya Shanker Mohite
Decided On:

Headnote:Order XLI, Rule 23-An Order of Removal-Not a matter of routine-Examination of available evidence by trial Court and conclusion-Remand by Appellate Court without considering the merit of findings by trial Court-Remand illegal-The order of remand is never passed as a matter of routine or for mere asking. Once the trial Court has examined the case on the basis of the available evidence and has reached conclusion, unless a dear case for remand was made out, the Appellate Court ought not to have remanded the matter. An order of remand under Order XLI, Rule 23-A cannot be made without considering the merits of the findings recorded by the trial Court. Not only that the merits of the findings recorded by the trial Court are required tl5be seen but has to be reversed and set aside and if the Appellate Court finds that retrial was necessary a case for remand could be made out.

       An order of remand under Rule 41 Rule 23-A should not be mixed up and confused with the power of the Appellate Court for production of additional evidence under Order XLI, Rule 27, CPC or where a material issue which was required to be framed was not framed and there was error on the part of the Court while framing issue under Order XIV of the Civil Procedure Code.

       Order XLI, Rule 23-A Remand-An order of remand under Order XLI, Rule 23-A cannot be made without considering the merits of findings recorded by trial Court and the findings of trial Court has to be reversed and set aside if Appellate Court finds that retrial was necessary.

       For Citation : 1998(2) All MR 748 at pp.742, 743 : 1998 (100)(1) Bom LR 88