IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Sr. No.204 SAO-72-2019 Date of decision : 10.02.2025 Gurjant Singh and another ..... Appellants VERSUS Surjit Singh and another ………..... Respondents CORAM: HON’BLE MR. JUSTICE ANIL KSHETARPAL Present: Mr. Ashish Grover, Advocate, for the appellants.

Mr. Ashok Batra, Advocate, for respondent No.1.

None for respondent No.2.

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ANIL KSHETARPAL , J. (Oral)

1. In this second appeal, the first appellate Court’s order passed on 21.09.2019 remitting the matter back to the trial Court is assailed by the defendants.

2. Plaintiff-Surjit Singh son of Hakam Singh filed a suit for possession which was dismissed on 28.01.2015. He filed an appeal. The learned first appellate Court has held that proper demarcation of the property has not been carried out, hence, the matter was remitted to the trial Court with a direction to appoint Local Commissioner. Plaintiff had also filed application for filing additional evidence to this effect.

3. The enabling power of the Appellate Court to remit the matter back to the lower Court is regulated and controlled by Order 41 Rule 23 and 23-A of the Code of Civil Procedure, 1908. While interpreting these provisions, the Hon'ble Supreme Court in P. Purushottam Reddy and Another v. Pratap Steels Ltd. (2002) 2 SCC 686, has laid down 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 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 exdebito justiitue, though not covered by any specite pression of Order 11 of the CPC In cores 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 aral 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 (0) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree ts 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 are covered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra v. Sushila (AIR 1965 SC 365 at p.399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in excepti