IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Order:21.02.2025 Chiranji Lal and others ..Appellants Versus Bhushan Kumar and others ..Respondents CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL Present: Mr. Rajan Bansal, Advocate, for the appellants.

Mr. Vikas Singh, Advocate, for respondent nos.1 to 5.

ANIL KSHETARPAL, JUDGE (Oral)

1. This appeal has been filed by the defendants to challenge the correctness of first appellate court's order remitting the matter back to the lower court.

2. The plaintiffs (respondents herein) filed a suit for declaration claiming to be owners of certain properties left behind by Sh. Kishan Chand. In substance, the dispute is with regard to inheritance of the properties left behind by Sh. Kishan Chand.

3. The plaintiffs as well as most of the defendants are successors in interest of Sh. Kishan Chand. The plaintiffs' suit was partly decreed by the trial court by an elaborate judgment. Two first appeals were filed, one by the plaintiffs and the second by the defendants. Before the First Appellate Court the plaintiffs filed an application for permission to lead additional evidence in order to produce the certified copies of two judgments passed in the years 2006 and 2014. The First Appellate Court after expressing certain doubts about the correctness of the trial court's findings, allowed the application under Order 41 Rule 27 CPC and remitted the matter back to the lower court.

4. 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 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 23