IMPORTANT POINT
Remand of a case requires substantial grounds and cannot be based solely on procedural errors or the allowance of additional evidence.

JUDGMENT :

Anil Kshetarpal, J.

This Second Appeal against the First Appellate Court’s order remitting the matter back to the trial court has been filed by the defendants.

2. In order to comprehend the issues involved in the present case, some relevant facts, in brief, are required to be noticed.

3. Smt. Santosh and her daughter Smt. Raksha jointly filed a suit for the grant of decree of declaration to the effect that the defendants are joint owners in possession of super structure of shop no.133 existing over the municipal site, which was previously in possession of Sh.Girdhari Lal alongwith the plaintiffs as joint tenants. The plaintiffs also prayed for partition of the property by metes and bounds and for decree of permanent injunction. The suit was dismissed after the defendants contested the suit. Smt. Raksha-plaintiff no.2 filed the first appeal in the year 2016. She filed an application for leading additional evidence in the year 2017. The First Appellate Court has allowed the application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’). The First Appellate Court has also noticed that there is a typographical omission in the memo of parties prepared by the trial court. On these two grounds, the First Appellate Court has remitted the matter back to the trial court for fresh decision.

4. Respondent no.1, despite receipt of the notice, has not entered appearance. Only she had filed the first appeal.

5. Heard the learned counsel representing the appellant at length and with his able assistance perused the paperbook.

6. The First Appellate Court has failed to appreciate that there is an inadvertent error in the memo of parties prepared by the trial court. Smt. Santosh alongwith her daughter Smt. Raksha jointly filed the suit through a common counsel. The defendants contested the same by filing the written statement. Thereafter, the trial court settled the following issues:-

“1. Whether plaintiffs are entitled to declaration as prayed for? OPP.

2. Whether plaintiffs are entitled for partition by metes and bounds of the shop in dispute? OPP.

3. Whether plaintiffs are entitled to permanent injunction as prayed for ? OPP.

4. Whether plaintiffs have got no locus standi to file the present suit? OPD.

5. Whether suit is bad for non joinder of the necessary parties? OPD.

6. Whether suit of plaintiffs is barred by limitation? OPD.

7. Whether suit of plaintiffs is not maintainable? OPD.

8. Whether the suit of plaintiff is collusive between the plaintiffs and defendants no.1 to 3? OPD.

9. Relief.”

7. The parties were permitted to lead evidence. Plaintiff no.2 Rekha, although in the memo of parties her name is Raksha, appeared in evidence as PW1. The defendants also led evidence. The suit was dismissed by the trial court by a detailed and elaborate judgment. As already noticed, the First Appellate Court has set aside the same only on the aforementioned two grounds. The enabling power under Order XLI Rule 23A CPC to remit the matter back to the lower court can be resorted to only if the judgment passed by the court below is set aside on merits and the re-trial is considered necessary.

8. In P.Purushottam Reddy and Another v. Pratap Steels Ltd. (2002) 2 SCC 686, the Supreme Court has explained the provisions relating to remand 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