MOHINI KAPUR, J.—In this revision petition an important point of law is involved which is whether an appellate court has power under O. 41 Rule 23,23-A and 25 C.P.C. to pass an order remanding a miscellaneous application for fresh decision. In other words it is to be seen whether S. 141 C.P.C. can be invoked to make the power of remand applicable to matters, arising in the course of a regular suit.

2. The facts of the case may be stated briefly at this stage. The non-petitioner plaintiffs filed a suit for permanent injunction in the court of Munsiff Magistrate, Fatehpur. Along with the plaint, they also filed an application under O. 39 r. 1 & 2 C.P.C. seeking a relief that the applicants be restrained from obstructing them from the use of chaubara and other premises. It may also be mentioned that the parties to the suit are related to each other and there was some dispute as to whether the properly in dispute was ancestral properly or individual property and who were the persons using it. The learned Munsiff, appointed a Commissioner for the inspection of the premises. The injunction application was heard by the trial court and by order dated 25.2.1985, the interim injunction application of the non-petitioners was dismissed. Against this order an appeal was preferred by them before the District Judge, which came to be decided by the Addl. District Judge, Sikar, by his order dated 12.8.86. The learned Addl. District Judge, accepted the appeal and set-aside the order of the trial court and remanded the application with direction to re-hear the same and take into consideration the complete evidence of the parties, in an appropriate manner, and if necessary to go to the site and then re-decide the matter. In the mean while, both the parties were directed to maintain status-quo.

3. The defendant petitioners feeling aggrieved against this order, have preferred this revision petition. Without going into the facts of the case, at this stage, it is first of all to be seen whether in a misc. appeal it is open to the appellate court to pass an order of remand, directing the trial-court to re-hear the matter and give fresh decision.

4. S. 107 C.P.C. lays down the powers of the appellate-court white disposing a suit and the powers are (a) to determine a case finally (b) to remand a case (c) to frame issues and refer them for trial (d) to take additional evidence or to require such evidence to be taken.

5. The circumstances and grounds on which a case can he remanded by the appellate-court are provided in order 41 Rule 23,23A and 25 C.P.C. They read as under:

O. 41. Rule 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 readmit 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".

Rule 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-"

Rule 25-

Where Appellate Court may frame issues and refer them for trial to court whose decree appealed from" where the court from whose decree the appeal is preferred has omitted to frame or try any issues, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame

Click Here to Read the rest of this document