IMPORTANT POINT
The appellate court's power to remand is limited to specific conditions under the CPC, emphasizing the need for a thorough evaluation of the trial court's judgment.

JUDGMENT :

Mr. Anil Kshetarpal, J. :- This is the defendants’ appeal against the order passed by the First Appellate Court, while remanding the case back to the trial court. In order to comprehend the issue involved in the present case, some relevant facts, in brief, are required to be noticed. The respondent (Smt. Sweeti Gupta) and her two minor sons filed a suit for the grant of decree of declaration that they are joint owners in possession of 1/6th share out of the property of defendant no.1. The plaintiff is widowed daughter-in-law of defendant no.1. Her suit was decreed on 30.08.2011. The defendants filed the first appeal. During the pendency of the appeal, the defendants filed an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) in order to produce in additional evidence i.e. a copy of the Will and mutation on the basis of the Will. In substance, the defendants wanted to prove that the suit property is not an ancestral property. The First Appellate Court allowed the application and remanded the case back to the trial court for deciding afresh.

2. In SAO-57-2023, titled as “Abdul Quddoors Vs. Ajit Singh (since deceased) through legal representatives and another”, decided on 08.01.2024, this Court has examined the scope and enabling power of the Appellate Court to remand the case back to the trial Court, which reads as under:-

“3. From the reading of the order passed by the First Appellate Court, it is evident that the Court has found that in para Nos. 23 and 24 of the trial Court judgment, the onus was wrongly shifted on the defendants and the First Appellate Court allowed the application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”). In fact, the scope of Order XLI Rule 23 and 23A CPC has been explained by the Supreme Court in P.Purushottam Reddy and Another v. Pratap Steels Ltd. (2002) 2 SCC 686, 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 it to the appellate court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (