Point of Law: it is not permissible to remit back the commissioner’s report, though a second commission is permissible.

JUDGMENT :

Under what circumstance, a remand of case can be ordered by the first appellate court, is it permissible to order remand in a routine manner simply on finding failure on the part of trial court to address any issue and what is the jurisdiction vested with the first appellate court in ordering remand of a case, are the questions came up for consideration.

2. It is a case wherein remand was ordered by the first appellate court simply on the reason that there is failure on the part of the trial court to appreciate the contention raised by the plaintiff regarding surrender of a portion of his property to the way in dispute and observed that the trial court failed to appreciate the above facts and circumstances in its correct perspective. Further, directions were issued to permit both the parties to adduce further evidence, if any and if necessary, remit the commissioner's report and plan back to the commissioner. Paragraph 14 of the impugned judgment would show the way in which the first appellate court ordered remand of the case without entering into any finding whether additional evidence is required in the case, without raising any new issues pertaining to the dispute and without answering whether there is failure on the parties to tender evidence on the disputed issues. It is a case wherein Exts.C2 (a) plan and C2 report were prepared through a survey commission, which were accepted by the trial court as well as the first appellate court. But a remand of the case was ordered solely on the ground that there is failure to consider the contention raised by the plaintiff regarding dedication of part of his property to the way in question. The evidences on record would show that the parties have tendered evidence fully knowing the dispute involved. The provisions enabling the first appellate court to order remand of a case viz., Rule 23 and Rule 23 A of Order XLI C.P.C. are extracted below for reference:

“23. Remand of case by Appellate Court – Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

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.”

3. Apart from Rule 23 and 23 A, Rule 24 is also incorporated in Order XLI C.P.C., mandating the appellate court to exercise its jurisdiction to determine the issue, when the parties have adduced evidence sufficient to determine the issue, without a remand of the case, which is extracted below for reference:

"24. Where evidence on record sufficient, Appellate Court may determine case finally –

Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds." (emphasis supplied)

4. A conjoint reading of Rule 23, 23A and 24 of Order XLI C.P.C. would make it clear that non-consideration, failure or mis-appreciation of an issue may not be a ground to order remand of the case, when the evidence on record is sufficient for dete