Appellate court cannot remand a case without reversing the decree and finding retrial necessary.

Bela M. Trivedi, J.

With the consent of the learned counsels for the parties, the appeal is decided finally at the admission stage.

2. The present appeal has been filed by the appellants-defendants under Order 43, Rule 1 (u) of CPC challenging the order dated 22.4.13 passed by the Addl. District Judge No.3, Jaipur Metropolitan, Jaipur (hereinafter referred to as 'the appellate court') in Civil Regular Appeal No. 15/12, whereby the appellate court has allowed the appeal filed by the respondent-plaintiff by setting aside the judgment and decree dated 28.4.12 passed by the Addl. Civil Judge (JD) No.2, Jaipur Metropolitan, Jaipur (hereinafter referred to as 'the trial court') in Civil Suit No. 636/09 and remanded the case to the trial court for deciding afresh in the light of the observations made in the impugned order.

3. It has been sought to be submitted by the learned counsel Mr. Alok Chaturvedi for the appellants that the appellate court could not have remanded the case to the trial court without reversing the decree passed by the trial court and without finding the retrial necessary as contemplated in Rule 23A Order 41 of CPC. According to him the appellate court has acted beyond the scope of Order 41, while remanding the case to the trial court. The learned counsel for the appellants has relied upon the decision of this court in the case of Khatoon Dukhtar (D) Through Lrs. v. Smt. Naraini Devi & Ors., 2013 (3) WLC (Raj.) 616 and also the decision of the Apex Court in the case of P. Purushottam Reddy & Anr. v. Pratap Steels Ltd., (2002) 2 SCC 686 : 2002 (1) ACJ 379 (SC) in support of his submissions.

4 However, the learned counsel Mr. M.C. Jain for the respondent has submitted that the impugned order passed by the appellate court being just and proper this court should not interfere with the same.

5. In the instant case, it appears that the respondent-plaintiff had filed the suit seeking declaration against the appellants-defendants, alleging interalia that he was entitled for the pay-scale of Rs. 6500-200-10500 and also for the promotion on the post of Static Officer. The said suit was resisted by the appellants-defendants denying the allegations made in the plaint and also raising the objections as regards the jurisdiction of the court to try the suit. The trial court after considering the evidence on record dismissed the suit vide the judgment and decree dated 28.4.12, against which the respondent-plaintiff had preferred the appeal before the appellate court. The appellate court while partly allowing the said appeal set aside the judgment and decree passed by the trial court and remanded the case to the trial court for deciding afresh in the light of the observations made in the impugned order.

6. It is pertinent to note that power of remand under Rule 23A Order 41, could be exercised by the appellate court when the trial court had disposed of the case otherwise than on a preliminary point, and when the decree in appeal is reversed and, a retrial is found necessary. On these two conditions being satisfied, the appellate court can exercise the same power under Rule 23A as under Rule 23. Further, the validity of remand of the case has to be tested by reference to Rule 25 also. The appellate court can not remand the case if the case is not covered either under Rule 23 or Rule 23A or Rule 25. A beneficial reference of the decisions of the Apex Court in this regard be made in case of Municipal Corporation, Hyderabad v. Sunder Singh, AIR 2008 SC 2579 : 2009 (1) CivCC 136 (SC) and in case of Jegannathan v. Raju Sigamani & Anr., (2012) 5 SCC 540 : 2012 (3) CivCC 113 (SC). With regard to scope of remand, a very pertinent observations have been made by the Apex Court in case of P. Purushottam Reddy & Anr. v. Pratap Steels Ltd., (2002) 2 SCC 686 in which it has been held in para 10 as under :-

"10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion