The main legal point established is the need to consider the implications of revisions and orders when deciding on remand, and the limitations and conditions for making a reference to the High Court under section 113.

JUDGMENT :

1. This reference is under section 113 of the Code of Civil Procedure which has been made by the then Sub-Judge Ramban. The facts in the suit giving rise to this reference are as under;

2. A civil suit for permanent prohibitory injunction restraining defendant from interfering in possession of the land of plaintiffs measuring 01 kanal and 06 marla comprising Khasra No. 480 situated in village Parnote Tehsil and District Ramban was filed by 09 villagers against the 12 persons of the same village. The trial court passed ad interim order on 26.09.2009 restraining the defendant from interfering till objections were filed and considered. After hearing the parties, the order of injunction dated 26.09.2009, however, was vacated by the trial Court vide its order dated 23.12.2009. The plaintiff challenged the order vacating ad interim order by filing a miscellaneous appeal before District Judge, Ramban. This appeal was allowed by the District Judge Ramban vide order dated 25.10.2010 with a direction to the parties to maintain status quo on spot.

3. The defendants challenged the order dated 25.10.2010 by filing a revision under section 115 of CPC. When this revision i.e. C. Rev. No. 48/2011 came up for hearing on 30.04.2016, it was dismissed by the court. The operative portion of the same is extracted below:

".....Learned counsel appearing for the petitioners on seeing the trial court records submits that the suit itself was dismissed by the trial court on 17.12.2013.

In view of the same, Civil Revision petition No. 48/2011 is dismissed as having been rendered infructuous......"

4. However, since Judgment and Decree dated 17.12.2013 has been challenged in appeal before the Principal and District Judge, the court decided the appeal by order dated 28.03.2010 and para nos. 8, 9 and 10 of the same being relevant are reproduced below:

"8. There is no doubt that mere pendency of an appeal or revision in the higher or appellate/revisional forum and order of status quo, ipso-facto does not tantamount to stay of proceedings of the trial court. However the appellants have placed on record of this court, a copy of subsequent order dated 23.05.2011 passed by Hon'ble High Court of J&K, vide which record of the trial court has been sent for. It appears that the said order was never brought into the notice of Ld. Trial court. Summoning the record of a subordinate court certainly amounts to stay of the proceedings and the propriety demands that Ld. Court below ought to have sent and submit record of the case before the Hon'ble High Court.

9. Ld. Counsels on the rival sides have admitted the pendency of revision petition in the Hon'ble high Court of J&K, as also order dated 23.05.2011, vide which record of the trial court has been sent for. However, a already discussed, the said order was neither produced before nor brought into notice of ld. Court below and ld. Trial court being oblivious of the said order passed the impugned judgment and decree which his required to be set aside.

10. Viewed thus, the present appeal is allowed and impugned judgment and decree are set aside. Consequently the case is remanded back to the trial court and learned Trial court is directed to immediately submit record of the case before Hon'ble high Court without further lapse of time. Record of the trial court alongwith copy of this order be immediately sent back."

5. The case was remanded, but while setting aside the impugned Judgment and Decree, there is no reference to the evidence, much less any discussion of evidence and law. The order of remand could be passed either under Rule 23 or Rule 23A of order 41 CPC because both the rules are identical to Rule 23 and Rule 23A of the central code which is now applicable to the Union Territory since 2019. While Rule 23 of Order 41 of CPC applies to the cases where the suit has been decided upon preliminary point and the decree is revised by the trial court and the trial court while reversing the decree consider it necessary t