An Appellate Court must engage with the merits of a case rather than remit it for retrial when all issues have been resolved at the Trial Court.

Judgment / Order : ASHOK KUMAR JAIN, J.

1. Aggrieved from judgment dated 24.04.2024 in Civil Regular Appeal Nos.57/2023 and 58/2023 passed by learned Additional District Judge, Karauli, instant CMA is preferred by appellant- defendants.

2. With the consent of learned Senior Advocate appearing for appellants and learned counsel appearing for respondent, we are disposing of the matter at this stage only.

3. Heard learned Senior Advocate for appellants and learned counsel for respondent.

4. A civil suit for possession and permanent injunction was filed by plaintiff-Govind Prasad before learned Additional Senior Civil Judge, Karauli, wherein defendants (present appellants) also filed a counter claim. Learned Trial Court after full trial has dismissed the civil suit filed by the plaintiff but allowed the counter claim and passed a decree in favour of present appellants-defendants and against the respondent-plaintiff. Aggrieved from dismissal of civil suit and also decree in counter claim, two civil appeals were preferred by plaintiff under Section 96 of CPC, and both were decided by common judgment.

5. Instead of considering the matter on merits, learned Appellate Court has set aside the judgment and decree passed by the Trial Court in counter claim. The Appellate Court has also set aside the order for dismissal of civil suit and remitted the matter back to the Trial Court for fresh consideration. Learned Appellate Court drawn a conclusion that the defendants are sailing on two boats by assailing two contrary pleas in their written statement and counter claim, and in view of inconsistent pleas, instead of deciding the issue, the Appellate Court set aside the judgment passed by Trial Court and has remitted back the matter for decision afresh.

6. A perusal of judgment of Trial Court clearly indicates that the Trial Court has considered the entire evidence and material placed on record, while drawing conclusion either against the plaintiff or in favour of defendants. The Trial Court has decided all issues before dismissing the civil suit and passing decree in counter claim. The Trial Court has not left any issue undecided while disposing the litigation.

7. The duty of First Appellate Court under Section 96 of CPC was to consider the matter on merits, on facts and on law. When the issue was fully decided by the Trial Court, then no room was left except to consider additional evidence, in any. It there is no additional evidence then, the only option left before the Appellate Court was to agree or disagree but herein without expressing any opinion on agreement or disagreement, the Appellate Court cannot remit the matter back by setting aside a well reasoned order in a cursory and cryptic manner. The power of Appellate Court is mentioned in Order XLI of CPC, wherein Rule 23 specifically provides for remit of case by Appellate Court if same is decided on preliminary issue, but Rule 23A provides for remand in other cases, when matter was decided on merits.

8. Having considered the provision of Hon’ble Supreme Court in case of Jegannathan vs Raju Sigamani & Anr. reported in AIR 2012 SC 3788 has considered three situations under which an order of remand can be passed by the Appellate Court and held that normally the Appellate Court shall remit the matter firstly, when the suit is decided only on preliminary ground, secondly after reversal of decree, it opines that retrial is necessary. Also considered judgment in case of Ashwinkumar K. Patal Vs. Upendra J. Patel AIR 1999 SC 1125 and in case of Khatoon Dukhtar (D) through LRs. Vs. Smt. Naraini Devi & Ors. (2013) 3 DNJ 1255 (Raj.).

9. Herein, the Trial Court has decided all the issues on the basis of material placed before it, thus, the duty of the Appellate Co