An appellate court must adhere to specified provisions in the CPC regarding remands, ensuring that orders are justified by substantial merit.

JUDGMENT :

Anil Kshetarpal, J.

CM-9114-CII-2019

1. For the reasons stated in the application, the same is allowed and delay of 35 days in refiling the appeal is condoned.

SAO-36-2019

2. The plaintiff assails the correctness of the First Appellate Court's order remitting the matter to the Trial Court for fresh decision after permitting the defendant to amend the written statement.

3. The plaintiff has filed a suit for specific performance of agreement to sell with consequential relief of permanent injunction. The defendant contested the suit on the ground that the plaintiff is a Commission Agent and has obtained his signatures on the blank papers as security for repayment of loan which have been subsequently used for fabricating the agreement to sell. The Trial Court ordered refund of earnest money. In the first appeal, the defendant filed an application for permission to amend the written statement in order to highlight that on 27.02.2009, the land comprised in khasra No. 107 killa No. 20 (6-8) was bifurcated into two parts i.e. 20/1(2-11) and 20/2 (3-17) of khasra No. 107. It was asserted that on the date of agreement to sell i.e. 17.12.1999, killa No. 20/2 was not in existence. The application for amendment was allowed and the First Appellate Court remitted the matter back to the Trial Court.

4. It has been disclosed that during the pendency of the proceedings before this Court, the Trial Court has also recorded some prima facie finding on an application under Section 340 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.').

5. The enabling power of the Appellate Court to remit the matter 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') and it 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 in