Order XLI Rules 23, 23-A and 25 - Remand of the suit not necessary - Lower appellate court itself decide the same when the additional evidence filed is only a continuous one of a document already filed in lower court = Sannapu Reddy Venkata Reddy.... APPELLANT Jillela Bhupal Reddy and another.... RESPONDENTS = published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10571
Order
XLI Rules 23, 23-A and 25 - Remand of the suit not necessary - Lower appellate court itself decide the same when the fresh additional evidence filed is only a continuous one of a document already filed in lower court =
It is not in dispute that all the exhibited documents, which are on
record, before the trial Court are also before the lower appellate Court and the
lower appellate court has the same power, on questions of law and fact, as that
of a trial Court. Hence, the lower appellate Court itself can appreciate the
oral and documentary evidence and come to its own conclusions.
5. In the present case, therefore, the lower appellate Court can as well
appreciate the documents i.e. Exs.A1 to A17 even when the said documents were
rejected by the trial Court by giving its own reasons, the lower appellate Court
is free to come its own conclusions on the said documents.
Fresh additional
evidence, which is produced before the lower appellate Court is concerned, the
same is only in the nature of the order of the Joint Collector under the A.P.
Rights in Land and Pattadar Passbooks Act, which is a superior Court's order
over Ex.B7.
Since that document is not in controversy between the parties,
the lower appellate Court may treat the said document as additional evidence on
its own merits and consider the same in the appeal along with the oral and
documentary evidence already available on record.
6. In the circumstances, therefore, the impugned order of remand of the lower
appellate Court directing remand of the suit for fresh consideration is set
aside. The appeal is restored to the file of the lower appellate Court, which
shall deal with the appeal, as a first appellate Court and determine the appeal
afresh preferably within a period of three (3) months from the date of receipt
of a copy of this order.
The civil miscellaneous appeal is accordingly allowed.
THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR
CIVIL MISCELLANEOUS APPEAL No.100 of 2013
26-11-2013
Sannapu Reddy Venkata Reddy.... APPELLANT
Jillela Bhupal Reddy and another.... RESPONDENTS
Counsel for Appellant :MR. O. MANOHER REDDY
Counsel for Respondents:MR. S. LAKSHMI NARAYANA
<GIST :
>HEAD NOTE:
? Cases referred:
(2002) 2 SCC 686
THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR
CIVIL MISCELLANEOUS APPEAL No.100 of 2013
The Court made the following:
JUDGMENT:
This appeal is by the defendant in O.S.No.179 of 2008 on the file of the
II Additional Senior Civil Judge, Nandyal. The said suit,
filed for declaration of title and permanent injunction, was dismissed by the
trial Court under its judgment and decree dated 23.07.2012.
Aggrieved thereby,
the plaintiffs preferred an appeal, being A.S.No.24 of 2012, before the III
Additional District Judge, Kurnool at Nandyal.
The lower appellate Court has
considered the appeal and on finding that the trial Court has not discussed
Exs.A1, A2, A7, A12 and A13 and the registered gift deed dated 11.05.1968, the
judgment of the trial Court was set aside and the suit was remitted under
judgment dated 24.12.2012.
Questioning the order of remand, this appeal is preferred by the defendant.
2. Heard Mr. O. Manoher Reddy, learned counsel for the appellant/defendant
and Mr. S. Lakshmi Narayana Reddy, learned counsel for the
respondents/plaintiffs.
3. As mentioned above, the order of remand by the lower appellate Court is
only on the ground that there is no discussion by the trial Court on the
aforementioned documents. During the hearing of this appeal, I have seen the
judgment of the trial Court and the trial Court has referred to Exs.A1 and A2 in
para 36 and Exs.A7 to A17 were noticed in para 54 and further findings are found
paras 59 and 60. While it is true that the trial rejected Exs.A1 to A17 for the
reasons given by it, it cannot be said that there is no consideration of the
said evidence by the trial Court. If the consideration by the trial Court is not
approved by the lower appellate Court, since the lower appellate Court has got
same powers as that of the trial Court, it is open for the lower appellate Court
to deal with the questions of law and fact and come to its own conclusions.
4. The power of remand is regulated under the Civil Procedure Code by Order
XLI Rules 23, 23-A and 25.
The present order of remand made by the lower
appellate Court, however, does not fall under any of the provisions aforesaid.
The Supreme Court in
P. PURUSHOTTAM REDDY v. PRATAP STEELS1
held at para 9 as follows:
"9. 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 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, 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 exceptional cases where the court may now exercise the power of
remand de hors the Rules 23 and 23A. To wit the superior court, if it finds that
the judgment under appeal has not disposed of the case satisfactorily in the
manner required by Order 20 Rule 3 or Order 11 Rule 31 of the CPC and hence it
is no judgment in the eye of law, it may set aside the same and send the matter
back for re-writing the judgment so as to protect valuable rights of the
parties. An appellate court should be circumspect in ordering a remand when the
case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An
unwarranted order of remand gives the litigation an undeserved lease of life
and, therefore must be avoided."
It is clear from the above that the power of remand to be exercised by the lower
appellate Court must be in conformity with any of the said provisions and a
remand is not to be ordered if the case does not fall under any of the aforesaid
provisions. It is not in dispute that all the exhibited documents, which are on
record, before the trial Court are also before the lower appellate Court and the
lower appellate court has the same power, on questions of law and fact, as that
of a trial Court. Hence, the lower appellate Court itself can appreciate the
oral and documentary evidence and come to its own conclusions.
5. In the present case, therefore, the lower appellate Court can as well
appreciate the documents i.e. Exs.A1 to A17 even when the said documents were
rejected by the trial Court by giving its own reasons, the lower appellate Court
is free to come its own conclusions on the said documents.
Fresh additional
evidence, which is produced before the lower appellate Court is concerned, the
same is only in the nature of the order of the Joint Collector under the A.P.
Rights in Land and Pattadar Passbooks Act, which is a superior Court's order
over Ex.B7.
Since that document is not in controversy between the parties,
the lower appellate Court may treat the said document as additional evidence on
its own merits and consider the same in the appeal along with the oral and
documentary evidence already available on record.
6. In the circumstances, therefore, the impugned order of remand of the lower
appellate Court directing remand of the suit for fresh consideration is set
aside. The appeal is restored to the file of the lower appellate Court, which
shall deal with the appeal, as a first appellate Court and determine the appeal
afresh preferably within a period of three (3) months from the date of receipt
of a copy of this order.
The civil miscellaneous appeal is accordingly allowed.
As a sequel, the miscellaneous applications, if any, shall stand closed. There
shall be no order as to costs.
_____________________
VILAS V. AFZULPURKAR, J
November 26, 2013
XLI Rules 23, 23-A and 25 - Remand of the suit not necessary - Lower appellate court itself decide the same when the fresh additional evidence filed is only a continuous one of a document already filed in lower court =
It is not in dispute that all the exhibited documents, which are on
record, before the trial Court are also before the lower appellate Court and the
lower appellate court has the same power, on questions of law and fact, as that
of a trial Court. Hence, the lower appellate Court itself can appreciate the
oral and documentary evidence and come to its own conclusions.
5. In the present case, therefore, the lower appellate Court can as well
appreciate the documents i.e. Exs.A1 to A17 even when the said documents were
rejected by the trial Court by giving its own reasons, the lower appellate Court
is free to come its own conclusions on the said documents.
Fresh additional
evidence, which is produced before the lower appellate Court is concerned, the
same is only in the nature of the order of the Joint Collector under the A.P.
Rights in Land and Pattadar Passbooks Act, which is a superior Court's order
over Ex.B7.
Since that document is not in controversy between the parties,
the lower appellate Court may treat the said document as additional evidence on
its own merits and consider the same in the appeal along with the oral and
documentary evidence already available on record.
6. In the circumstances, therefore, the impugned order of remand of the lower
appellate Court directing remand of the suit for fresh consideration is set
aside. The appeal is restored to the file of the lower appellate Court, which
shall deal with the appeal, as a first appellate Court and determine the appeal
afresh preferably within a period of three (3) months from the date of receipt
of a copy of this order.
The civil miscellaneous appeal is accordingly allowed.
THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR
CIVIL MISCELLANEOUS APPEAL No.100 of 2013
26-11-2013
Sannapu Reddy Venkata Reddy.... APPELLANT
Jillela Bhupal Reddy and another.... RESPONDENTS
Counsel for Appellant :MR. O. MANOHER REDDY
Counsel for Respondents:MR. S. LAKSHMI NARAYANA
<GIST :
>HEAD NOTE:
? Cases referred:
(2002) 2 SCC 686
THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR
CIVIL MISCELLANEOUS APPEAL No.100 of 2013
The Court made the following:
JUDGMENT:
This appeal is by the defendant in O.S.No.179 of 2008 on the file of the
II Additional Senior Civil Judge, Nandyal. The said suit,
filed for declaration of title and permanent injunction, was dismissed by the
trial Court under its judgment and decree dated 23.07.2012.
Aggrieved thereby,
the plaintiffs preferred an appeal, being A.S.No.24 of 2012, before the III
Additional District Judge, Kurnool at Nandyal.
The lower appellate Court has
considered the appeal and on finding that the trial Court has not discussed
Exs.A1, A2, A7, A12 and A13 and the registered gift deed dated 11.05.1968, the
judgment of the trial Court was set aside and the suit was remitted under
judgment dated 24.12.2012.
Questioning the order of remand, this appeal is preferred by the defendant.
2. Heard Mr. O. Manoher Reddy, learned counsel for the appellant/defendant
and Mr. S. Lakshmi Narayana Reddy, learned counsel for the
respondents/plaintiffs.
3. As mentioned above, the order of remand by the lower appellate Court is
only on the ground that there is no discussion by the trial Court on the
aforementioned documents. During the hearing of this appeal, I have seen the
judgment of the trial Court and the trial Court has referred to Exs.A1 and A2 in
para 36 and Exs.A7 to A17 were noticed in para 54 and further findings are found
paras 59 and 60. While it is true that the trial rejected Exs.A1 to A17 for the
reasons given by it, it cannot be said that there is no consideration of the
said evidence by the trial Court. If the consideration by the trial Court is not
approved by the lower appellate Court, since the lower appellate Court has got
same powers as that of the trial Court, it is open for the lower appellate Court
to deal with the questions of law and fact and come to its own conclusions.
4. The power of remand is regulated under the Civil Procedure Code by Order
XLI Rules 23, 23-A and 25.
The present order of remand made by the lower
appellate Court, however, does not fall under any of the provisions aforesaid.
The Supreme Court in
P. PURUSHOTTAM REDDY v. PRATAP STEELS1
held at para 9 as follows:
"9. 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 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, 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 exceptional cases where the court may now exercise the power of
remand de hors the Rules 23 and 23A. To wit the superior court, if it finds that
the judgment under appeal has not disposed of the case satisfactorily in the
manner required by Order 20 Rule 3 or Order 11 Rule 31 of the CPC and hence it
is no judgment in the eye of law, it may set aside the same and send the matter
back for re-writing the judgment so as to protect valuable rights of the
parties. An appellate court should be circumspect in ordering a remand when the
case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An
unwarranted order of remand gives the litigation an undeserved lease of life
and, therefore must be avoided."
It is clear from the above that the power of remand to be exercised by the lower
appellate Court must be in conformity with any of the said provisions and a
remand is not to be ordered if the case does not fall under any of the aforesaid
provisions. It is not in dispute that all the exhibited documents, which are on
record, before the trial Court are also before the lower appellate Court and the
lower appellate court has the same power, on questions of law and fact, as that
of a trial Court. Hence, the lower appellate Court itself can appreciate the
oral and documentary evidence and come to its own conclusions.
5. In the present case, therefore, the lower appellate Court can as well
appreciate the documents i.e. Exs.A1 to A17 even when the said documents were
rejected by the trial Court by giving its own reasons, the lower appellate Court
is free to come its own conclusions on the said documents.
Fresh additional
evidence, which is produced before the lower appellate Court is concerned, the
same is only in the nature of the order of the Joint Collector under the A.P.
Rights in Land and Pattadar Passbooks Act, which is a superior Court's order
over Ex.B7.
Since that document is not in controversy between the parties,
the lower appellate Court may treat the said document as additional evidence on
its own merits and consider the same in the appeal along with the oral and
documentary evidence already available on record.
6. In the circumstances, therefore, the impugned order of remand of the lower
appellate Court directing remand of the suit for fresh consideration is set
aside. The appeal is restored to the file of the lower appellate Court, which
shall deal with the appeal, as a first appellate Court and determine the appeal
afresh preferably within a period of three (3) months from the date of receipt
of a copy of this order.
The civil miscellaneous appeal is accordingly allowed.
As a sequel, the miscellaneous applications, if any, shall stand closed. There
shall be no order as to costs.
_____________________
VILAS V. AFZULPURKAR, J
November 26, 2013
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