An order of remand should not be passed as a matter of course and should only be considered when a retrial is necessary. The Appellate Court should exercise its jurisdiction under Rule 24 of Order XLI and invoke Rule 27 of Order XLI, rather than remanding the matter on flimsy grounds.

ORDER :

1. This miscellaneous appeal filed under Order XLIII Rule 1(u) of the Code of Civil Procedure is against the judgment dated 26th May, 2016 passed in Civil Appeal No. 16 of 2014 whereby the learned Principal District Judge, Bokaro, while setting aside the judgment passed in Title Suit No. 45 of 2007, remanded the suit to the Court concerned for deciding afresh in the light of provisions of Order XLI Rule 23(A) of the Code of Civil Procedure.

2. Learned counsel appearing for the appellants submitted that on absolutely a wrong notion and erroneous consideration, which are apparent on the face of the record, the order has been passed. As per him, the main ground for remand is at paragraphs 47, 48 and 49 of the impugned judgment, but the observations made in the aforesaid paragraphs are absolutely erroneous and against the law and in fact the learned Principal District Judge has passed the impugned judgment without appreciating the facts of the case and the materials available on record, which is impermissible. As per him Appellate Court should not have remanded the matter as there was sufficient evidence to decide the suit. The appeal being in continuation of the suit, should have been decided by the Appellate Court on the basis of the evidence led. He further submits that a fundamental error has been committed by the Appellate Court in giving direction to the Trial Court to adduce a particular document in evidence, which is impermissible in law. Further, the direction of the Appellate Court to implead the State of Jharkhand as one of the defendant, shows non-application of mind by the Court concerned, as the First Appeal itself was filed by the State of Jharkhand and not only this, the State of Jharkhand was defendant in Title Suit No. 45 of 2007, thus, on this ground, he prays that the impugned judgment of remand is absolutely bad.

3. Counsel appearing on behalf of the State submits that the Appellate Court felt that it was necessary to rehear the Title Suit, thus, the matter was remanded. He contends that the First Appellate Court felt that some documents were not proved properly, so the Appellate Court has set aside the judgment passed in Title Suit and remanded the same for fresh decision and no illegality can be found in the impugned judgment.

4. To decide the issue, it is not necessary to deal with the entire facts of this case. Briefly stating, a plaint was filed, which was numbered as Title Suit No. 45 of 2007, by the plaintiffs-appellants herein against the State and others. In the aforesaid suit, on the basis of the pleadings, 9 issues were framed. The Trial Court answered the issues and ultimately, decreed the suit. The defendants in the said suit were State of Jharkhand and others. Aggrieved by the said judgment, State of Jharkhand preferred an appeal under Section 96 of the Code of Civil Procedure before the First Appellate Court. The Principal District Judge, Bokaro heard the parties and vide impugned judgment, was pleased to set aside the judgment passed by the Trial Court and remanded the matter to the Trial Judge for deciding the suit afresh in terms of Order 41 Rule 23A of the Code of Civil Procedure.

5. Order XLI Rule 23A of the Code of Civil Procedure provides for remand of cases otherwise than on preliminary point, wherein decree is reversed in appeal, and retrial is considered necessary. It is necessary to quote Order XLI Rule 23A of the Code of Civil Procedure, which reads as under:

ORDER XLI

APPEALS FROM ORIGINAL DECREE

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.

6. Further, there are other provisions relating to hearing of appeal and remand of a case and remitting the issue for trial or for production of additional evidence. It is necessary to quote other