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IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.ANIL KUMAR, J.
KUTTIPRAVAN ABDULLA, S/O.MOIDHEEN HAJI – Appellant
Versus
KUTTIPRAVAN ABOOBACKER – Respondent
RSA NO.488 OF 2020
Decided on : 13-07-2021
Code of Civil Procedure, 1908 – Sections 100, Order XLIII Rule 1, Order XLI Rule 23 – Suit for partition – Order of Remand – Regular Second Appeal is directed against judgment and decree in A.S. on file of Additional District Court-II, arising from judgment and decree in O.S. on file of Munsiff Court – Appellant herein is defendant No.1 – Suit was for partition and other reliefs – Appellant contested suit on diverse grounds – After framing appropriate issues and recording evidence, Trial Court dismissed suit – Order of remand was challenged by present appellant/1st defendant by filing a regular second appeal before High Court under Section 100 of Code of Civil Procedure, 1908 – On administrative side, Registry of this Court noted that a regular second appeal against a remand order is not maintainable in light of Order XLIII Rule 1(u) of Code
Finding of the court:
It is clear that Order XLI Rule 23 is invokable by appellate court where appeal has arisen from decree passed on a preliminary point and decree is reversed in appeal – Order XLI Rule 23-A of Act provides that Appellate Court may remand suit to trial court even though such suit has been decided on merits – It provides that where Trial Court has disposed of suit on merits otherwise than on a preliminary point and decree is reversed in appeal and if appellate court considers that re-trial is necessary, appellate court may remand suit to trial court – Insofar as Order XLI Rule 25 of Code is concerned, appellate court continues to be in seisin of matter and it calls upon trial court to record finding on some issue or issues and send that finding to appellate court, within such time as may be fixed – It is very difficult to hold that order of remand was passed under Order XLI Rule 23 or under Order XLI Rule 25 of Code – Insofar as Order XLI Rule 25 of Code is concerned, power is generally invoked by appellate court where it holds that trial court passed decree omitted to frame or try any issue or to determine any question of fact essentially to right decision of suit upon merits – Court is of view that order of remand passed by first appellate court was certainly an order of remand in exercise of its powers under Order XLI Rule 23-A of Code – An order of remand passed under Order XLI Rule 23-A is amenable to appeal (FAO(RO)) under Order XLIII Rule 1(u) of Code. – Court is of view that this RSA is not maintainable by sustaining objection raised by Registry – Objection raised by Registry is sustained – Registry shall return this RSA to appellant for proper presentation in accordance with scheme of “the Code”. –
Result :RSA Ordered Accordingly.
ORDER :
This Regular Second Appeal is directed against the judgment and decree dated 18.12.2019 in A.S.No.69/2017 on the file of the Additional District Court-II, Thalassery (hereinafter referred to as, “the first Appellate Court”) arising from the judgment and decree dated 18.07.2017 in O.S.No.388/2014 on the file of the Munsiff Court, Koothuparamba (hereinafter referred to as, “the Trial Court”). The appellant herein is the defendant No.1. The suit was for partition and other reliefs. The appellant contested the suit on diverse grounds. After framing appropriate issues and recording the evidence, the Trial Court dismissed the suit.
2. Assailing the judgment and decree of the Trial Court dated 18.07.2017, the 1st respondent/plaintiff preferred first appeal before the Additional District Court -II, Thalassery. On hearing the parties, the first appellate Court remanded the suit to the trial court with a direction to give an opportunity to both parties to adduce evidence as under;
2. The decree and judgment in O.S.No.388/2014 passed by the Munsiff, Kuthuparamba are set aside.
3. I.A.No.2217/2018 for amendment of the plaint is allowed.
4. The suit is remanded to the court below.
5. The parties hall appear before the Court below, through counsel on 04.02.2020 at 11.00 am.
6. On such appearance, the appellant/plaintiff shall carry out the amendment of the plaint allowed I.A. 2217/2018 within seven days.
7. The respondents shall be at liberty to file additional written statements, if any, against the said calculation of shares to be incorporated by way of the said amendment(without further disputing Exts. A2 and A3 documents), about equities and reservations and to claim separation of their shares individually by paying court fees if they so desires.
8. The court below shall frame appropriate additional issues if arises on the basis of the further pleadings.
9. The parties shall be at liberty to adduce evidence also for this limited purpose.
10. After holding trial, limited in accordance with these directions, the court below shall pass a preliminary decree in the suit.
11. The parties shall bear their respective costs of the appeal.”
3. The order of remand dated 18.12.2019 was challenged by the present appellant/1st defendant by filing a regular second appeal before the High Court under Section 100 of the Code of Civil Procedure, 1908 (for short 'the Code'). On the administrative side, the Registry of this Court noted that a regular second appeal against a remand order is not maintainable in the light of Order XLIII Rule 1(u) of the Code.
4. Heard the learned counsel for the appellant Shri.T. Ramesh Babu and the learned counsel for the 1st respondent, Shri.R.Parthasarathy.
5. Order XLI of the Code provides for appeal from original decrees. The Code empowers the appellate court to pass an order of remand in three specific situations. These three specific situations are covered by Order XLI Rule 23, Order XLI Rule 23-A and Order XLI Rule 25 of the Code. In this connection, Order XLI Rule 23, 23-A and 25, which are relevant for this appeal are as under;
23-A. Remand in other cases.-
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