In the High Court of Punjab and Haryana, at Chandigarh Date of Decision: 30.04.2025 Mahinder Kaur and Others ... Petitioner(s)

Versus Rajwant Kaur and Others ... Respondent(s)

CORAM: Hon'ble Mr. Justice Anil Kshetarpal.

Present: Mr. Balbir Singh Jaswal, Advocate for the appellant(s).

Mr. Kushagra Mahajan, Advocate for respondent No.1. Anil Kshetarpal, J.

1. The plaintiffs assail the correctness of the First Appellate Court’s order remitting the matter back to the Trial Court for fresh decision.

2. The plaintiffs filed a suit for specific performance of the agreement to sell with consequential relief of permanent injunction which was contested by the defendants. Ultimately, the suit was decreed by an elaborate judgment passed by the Trial Court. The defendant No.2 filed the first appeal which was allowed on the ground that no specific issue has been framed by the Trial Court regarding the fact that the agreement to sell propounded by the plaintiffs is forged & fabricated and has been pre-dated in order to defeat the right of the defendants. The Trial Court has also not framed any issue as to “whether the defendant is a bonafide purchaser?”

3. It is open to the First Appellate Court to modify the issues or frame additional issues, however, on this ground, it not permissible for the First Appellate Court to remit the matter back to the Trial Court.

4. The enabling power of the Appellate Court to remit the matter back to the Trial Court is regulated by Order XLI Rule 23 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) which 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 inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand