The Appellate Court must set aside the lower court's judgment on merits before remanding a case under Order XLI Rule 23A of the CPC, emphasizing caution in remand orders.

JUDGMENT

Anil Kshetarpal, J. (Oral)

SAO-100-2017

In this second appeal against order, the defendants assail the correctness of the First Appellate Court's order remitting the matter back to the trial Court for fresh decision.

2. On a perusal of the impugned order, it becomes evident that the Court found that the suit property comprised in Plot No.238 and 239 are situated in different 16 biswas area as compared to 10 biswas area and the same khasra number. The Court also found that clarity on this aspect can be brought about by appointing a local commissioner. The First Appellate Court's also held that the following additional issues are required to be adjudicated:-

"1. Whether there exists a Boundary Wall fitted with a Gate over plots No. 238 and 239, i.e. Suit Property? OPP

2. Whether the Suit Property comprises 16 Biswas area recorded in the Revenue Record in the possession of co-owners, which is different to the 10 Biswas area of same Khasra No. 898, wherein the name of defendant appears in the Column of Possession? OPP

3. Whether M/S Dhir & Company has sold the Suit Property/Plots to the plaintiff out of the 10 Biswas area of Khasra No.898 min wherein the name of defendant No.1 is recorded in the Column of Possession? OPD No. 1."

3. In attached CR-3727-2018, the plaintiff assails the correctness of trial Court's order passed on 17.05.2018, while dismissing his application for permission to amend the plaint in order to seek alternative relief of possession. This order has been passed after the matter was remitted back by the First Appellate Court to the trial Court.

4. This Bench has heard the learned counsel representing the parties at length and with their able assistance perused the paperbook.

5. The learned counsel representing the appellant in SAO-100- 2017 submits that the First Appellate Court has committed error in remitting the matter back to the trial Court for fresh decision. She submits that the enabling power under Order XLI Rule 23 A of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') requires the First Appellate Court to set aside the judgment of the trial Court while forming opinion that retrial of the case is necessary.

6. Per contra, the learned counsel representing the respondent in SAO-100-2017 submits that the trial Court will have the benefit of report of local commissioner as well as findings on various other issues, which have been framed.

7. Hence, this Court should not interfere in the matter.

8. In SAO-57-2023, titled as "Abdul Quddoors v. 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