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RAJASTHAN HIGH COURT
Belam Trivedi, J.
Ramesh Chand —Appellant
versus
Mandir Shri Namdev —Respondent
S.B. Civil Miscellaneous Appeal No.6125 of 2011
Decided on 4.9.2013
Counsels for the Parties:
For the Appellant :Mr. Hemant Sharma, Advocate.
For the Respondent:Mr. Suresh Pareek, Sr. Advocate with and Mr. N.C. Sharma, Advocate.
IMPORTANT POINT
Provision for additional evidence does not permit appellate court to remand case to trial court.
Headnote:Civil Procedure Code, 1908—Order 41 Rule 27 read with Rules 23 and 23-A—Additional evidence—Eviction suit—Dismissal—Appellate court while allowing application remanded case to trial court for deciding suit afresh with further direction to permit parties to lead evidence in rebuttal in respect of documents—Rule 27 of Order 41 empowers appellate court itself to permit party to lead additional evidence or examine witnesses for any substantial cause—Said provision does not permit appellate court to remand case to trial court—Appellate court at the most could have framed additional issues and called for findings on such additional issues or could have remanded case after reversing decree passed by trial court and finding retrial necessary as contemplated in Rule 23A—Appellate court has neither exercised its powers under Rule 23A or Rule 25 and has remanded case to trial court which order could not be said to be in consonance with scope of remand—Impugned order suffers from illegality and infirmity which deserves to be set aside—Impugned order passed by appellate court set aside and appellate court directed to decide appeal on merits. (Paras 5 and 6)
Result: Civil Miscellaneous Appeal allowed.
Belam, Trivedi, J.— The present appeal has been filed by the appellant-defendant challenging the order dated 5.9.2011 passed by the Addl. District Judge (Fast Track) No.6, Jaipur City, Jaipur (hereinafter referred to as ‘the appellate court’) in Civil Regular Appeal No.909, whereby the appellate court has set aside the judgment and decree dated 9.3.2009 passed by the Add1. Civil Judge (JD) West Jaipur City, Jaipur (hereinafter referred to as ‘the trial court’) in Civil Suit No.12/95 and allowed the application of the respondent-plaintiff for taking additional documents on record under Order XLI Rule 27 of CPC subject to payment of cost of Rs.2,000, and further directed the trial court to decide the suit afresh after granting opportunity to both the parties to produce the evidence in rebuttal in respect of the said documents.
2. In the instant case it appears that the respondent-plaintiff had filed the suit seeking eviction of the appellant-defendant from the suit premises, which suit was dismissed by the trial court vide the judgment and decree dated 9.3.2009. The respondent being aggrieved by the said decree had preferred the appeal before the appellate court. During the pendency of the appeal, the respondent submitted an application under Order XLI Rule 27 of CPC for taking on record certain documents. The appellate court vide the impugned order allowed the said application under Order XLI Rule 27 and remanded the case to the trial court as stated hereinabove.
3. Heard the learned counsel Mr. Hemant Sharma for the appellant and Mr. Suresh Pareek for the respondent.
4. At the outset it is required to be stated that the powers of appellate court to remand the case are contained in Rule 23 and 23A of Order XLI of CPC. Rule 23 would apply in a case where the suit has been disputed of on preliminary issue, whereas Rule 23A would apply when the suit has been disposed of otherwise than on preliminary issue. The remand under Rule 25 of the said Order would be a very limited remand wherein the subordinate court can try only such issues as are referred to it for trial and having done so, the said court has to return the case to the appellate court, alongwith the evidence recorded and the findings on the issues referred to it. The Apex Court in case of P. Purushottam Reddy & Anr. v. Pratap Steels Ltd., 2002(2) SCC 686: 2002(1) Supreme 357. has laid down the scope of remand in para 10 as under:
“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 the 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 inasmuch 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 therefor of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before the 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151. CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of anyone of the clause of Sub-rule (1) of Rule 27 being
