Important Point: The appellate Court would have to first go into the merits of the adjudication by the trial Court and only on being satisfied that the decree is liable to be reversed and fresh trial is considered necessary that such order of remand can be passed.

1. In view of the notice for final disposal issued earlier, the appeal is admitted and taken up for final hearing with the consent of counsel for the parties.

2. The short question that arises for consideration is whether the provisions of Order 41 Rule 23A of the Code of Civil Procedure, 1908 (for short, “the Code”) can be invoked by the appellate Court for remanding the proceedings without entering into the merits of the adjudication by the trial Court.

3. The respondent had filed a petition for grant of divorce under the provisions of Section 13(1)(i)(ia) of the Hindu Marriage Act, 1955. The appellant filed counterclaim seeking divorce on the ground of adultery. Thereafter the respondent withdrew the original proceedings filed by her for divorce. The trial Court while permitting withdrawal of said proceedings directed that the counterclaim filed by the appellant shall be continued. The respondent subsequently did not participate in the counterclaim proceedings as a result of which the trial Court on 21.11.2014 passed a decree for divorce. The marriage accordingly came to be dissolved on the ground of adultery. The respondent filed an appeal challenging the aforesaid decree and the appellate Court by the impugned order set aside the said decree and remanded the proceedings by observing that an opportunity be given to the respondent to contest the counterclaim on merits. Hence, this appeal.

4. Shri Rohit Joshi, learned counsel for the appellant submitted that the appellate Court was not justified in remanding the proceedings for fresh trial without entering into the merits of the adjudication by the trial Court. It was submitted that the proceedings were remanded only on the ground that the respondent could not participate in the counterclaim. Such course was not permissible under the provisions of Order XLI Rule 23A of the Code. In support of his submission learned counsel placed reliance upon the judgment of Hon'ble Supreme Court in the case of P. Purushottam Reddy and another vs. Pratap Steels Ltd., reported in (2002) 2 SCC 686.

5. Shri A.R. Wagh, learned counsel for the respondent supported the impugned judgment and submitted that as the respondent could not participate in the counterclaim, the appellate Court was justified in directing remand of the proceedings. He submitted that as the appellate Court was satisfied that an opportunity deserves to be given to the respondent to contest the proceedings, the matter had been remanded. He, therefore, submitted that there was no reason to interfere with the impugned order.

6. I have heard respective counsel for the parties and I have perused the documents on record. It is not in dispute that the respondent had withdrawn the petition for divorce filed by her. The trial Court while permitting such withdrawal directed the counterclaim to proceed further. It appears that thereafter the respondent did not participate in the proceedings resulting in decree for divorce being passed. In the appeal filed by the respondent the appellate Court by observing that on account of misconception she could not contest the proceedings, remanded the same.

7. Under the provisions of Order XLI Rule 23A of the Code, the appellate Court can direct remand of the proceedings after it reverses the decree and further finds that a fresh trial is necessary. For said purpose, the appellate Court would have to first go into the merits of the adjudication by the trial Court and only on being satisfied that the decree is liable to be reversed and fresh trial is considered necessary that such order of remand can be passed. In P. Purushottam Reddy and another (supra), the Hon'ble Supreme Court has held that it is only in exceptional cases and where the conditions stipulated by provisions of Order XLI Rule 23A of the Code are satisfied that such order of remand can be passed. In the present case, the appellate Court without entering into merits of the adjudication by the trial Court merely remanded the proceed