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IN THE HIGH COURT OF ALLAHABAD, LUCKNOW BENCH
Hon'ble Rajnish Kumar,J.
Prakash Narain – Appellant
Versus
Hari Bux Singh – Respondent
JUDGMENT :
Rajnish Kumar, J.
1. The instant appeal under Order XLIII Rule 1(U) of the Civil Procedure Code, 1908 (herein-after referred as C.P.C.) has been filed against the Judgment and order dated 04.01.2022 passed in Civil Appeal No.110 of 2011; Hari Bux Singh and others vs. Prakash Narain and others by the Additional District and Sessions Judge, Court No.1, Sultanpur, by means of which the appeal has been allowed and the Judgment and decree passed by the trial court has been set aside and the matter has been remanded back to the trial court for fresh decision of the suit on merits.
2. Learned counsel for the plaintiff-appellants submitted that the defendant-respondents were not present when the case was called for hearing on the date fixed, therefore, the appeal could not have been decided on merit by the lower appellate court and it should have been dismissed under Order XLI Rule 17 of C.P.C. He further submitted that the lower appellate court has decided the civil appeal in violation of Order XLI Rule 31 of C.P.C. without framing points for determination and recording the findings thereon.
3. He further submitted that the plea of limitation taken by the defendant-respondents was
The appellate court must consider substantive merits alongside procedural compliance when remanding a case, avoiding remand solely on technical grounds.
The main legal point established in the judgment is that the power of remand should not be exercised routinely and should only be used when a re-trial is considered necessary, in accordance with the ....
The appellate court must decide cases based on available evidence and cannot remand without necessity, as doing so prolongs litigation without serving justice.
Point of Law : Order XVII prescribes the procedure to be followed by the Court in trial of Suits. The procedure to be followed by appeal Court while hearing an appeal is prescribed in Order XLI CPC.
The appellate court must provide cogent reasons for remanding a case, and it should decide based on existing evidence if sufficient, rather than remanding without due justification.
Appeal from Original Decree – Explanation to Order XLI Rule 17 CPC also applies in cases where counsel for appellant, though physically present in Court when appeal is called on for hearing, refuses ....
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