IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Order:08.05.2025 Resham Lal and others .Appellants Versus Kewal Krishan and others ..Respondents CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL Present: Mr. Malkeet Singh, Advocate for the appellants.

Mr. Munish Goel, Advocate for respondent no.1 ANIL KSHETARPAL, JUDGE (Oral)

1. The defendants assail the correctness of the First Appellate Court's order remitting the matter back to the trial court for fresh decision.

2. In fact, the First Appellate Court in the first round remitted the matter back to the trial court on 05.04.2016. Thereafter, the trial court dismissed the plaintiff's suit but the First Appellate Court has again remitted the matter back to the trial court.

3. The plaintiff filed the suit for grant of decree of declaration that he is entitled to 1/5^th share of the property left behind by Des Raj on the basis of registered Will dated 13.12.1996 and further for declaration that the Will dated 14.12.2003 is fabricated and not executed by Des Raj.

4. The defendants contested the suit. The suit qua defendant no.6 was dismissed under Order IX Rule 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC'). Ultimately, on merits also, the trial court dismissed the suit.

5. 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 CPC. 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 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 it