The central legal point established in the judgment is the interpretation of the enabling power of the Appellate Court to remit the case back to the trial court as regulated by Order XLI Rule 23 and 23A of the Code of Civil Procedure, 1908, and the limitations on the power of remand.

Judgment

Mr. Anil Kshetarpal, J.

The learned First Appellate Court, after allowing the application for permission to lead additional evidence has permitted the plaintiffs to prove the registered Will dated 24th June, 1997 allegedly executed by Sh. Hari Singh, their father has remitted the case back to the trial court for fresh decision, after framing distinct issue with regard to both the Wills. The correctness of the aforesaid order is challenged before this Court. On 11th August 2023, the following order was passed by this Court:-

“Learned counsel representing the appellant inter alia contends that the First Appellate Court has erred in remanding the case back to the trial Court, similarly on allowing the application for permission to lead additional evidence.

Notice be issued to respondent Nos.1 to 3 for 22.08.2023.

Dasti only.

The appellant shall have liberty to serve the respondents through their counsel-Sh. Jugral Kishore Garg, District Court, Sangrur.”

2. Heard the learned counsel representing the parties at length and with their able assistance perused the paperbook.

3. The learned counsel representing the appellants submits that the First Appellate Court has erred in allowing the application for permission to lead an additional evidence. He submits that both the attesting witnesses of the Will dated 24th June, 1997 have died and therefore, the First Appellate Court has erred in allowing the application. He submits that the civil suit filed by the plaintiffs was dismissed and therefore, the First Appellate Court should have decided the appeal.

4. On the other hand, the learned counsel representing the respondents submits that after the case was remitted back to the trial court, deposition of two witnesses have already been recorded and the plaintiffs have closed their evidence.

5. The enabling power of the Appellate Court to remit the case back to the trial court is regulated by Order XLI Rule 23 and 23A of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’). While interpreting Order XLI Rule 23 and 23A, the Supreme Court in P. Purushottam Reddy and Another v. Pratap Steels Ltd. (2002) 2 SCC 686, has explained the aforesaid provision in the following manner:-

“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 of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand in as much as the subordinate court can try only such issues as are referred to it for trial and having done so the evidence recorded together with findings and reasons therefore of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand it such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 11 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Sub-rule (1) of Rule 27 being attracted such additional evidence oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send i