SHIVAPPA v. SHANTAVVA AND OTHERS
No. Remand under Order 41 Rule 23 CPC is not to be adopted as a matter of ordinary course; such discretion is exercised only when imminently warranted by the circumstances, since the appellate court itself has jurisdiction to decide all questions of fact and law on the material available.
Code of Civil Procedure, 1908 — s.107, O.41 R.23, R.24, R.27 — Remand by first appellate court — Judicial discretion — Not a matter of ordinary course —
Code of Civil Procedure, 1908 — O.41 R.23 — Remand — Not a matter of ordinary course —
Held: Remand under Order 41 Rule 23 CPC is not to be adopted as a matter of ordinary course; such discretion is exercised only when imminently warranted by the circumstances of the case. Since the pleadings, issues and evidence already enabled a finding on Item No. ‘5’, the High Court's remand was an incorrect exercise of its discretion and was set aside. (¶14.1, 16, 17)
In the Court's own words
Paragraph 1Leave granted.
Paragraph 14Before reverting to the reasons in the Impugned Judgment, a few leading precedents on the point, including the one on which the Defendant No. 2 has relied, are referred to.
Paragraph 16The reason for remand assigned by the High Court is that, despite a plea that the Sale Deed dated 28.06.1982 is sham and nominal, no issue was framed. We have perused the Plaint and Written Statement. Issue No. 2, excerpted supra, is a comprehensive issue regarding the partition dated 04.01.1980. Similarly, Issue No. 3 covers the sale of Item No. ‘5’ of the Suit Schedule in favour of Defendant No. 2, whether valid or not. Therefore, the Trial Court has not decided the Suit without relevant issues being presented by the pleadings of the parties. In our view, remand is not to be adopted as a matter of ordinary course, and the Judgment of remand reflects the Appellate Court’s incorrect exercise of its discretion. In the case at hand, the parties have adduced oral and documentary evidence in accordance with the burden and onus of proof fastened on them. At this stage, directions are given to reframe issues, adduce further evidence, and afford the parties a further opportunity to lead evidence. There were no circumstances preventing the first appellate court from deciding the points in issue. Consequently, remanding the case to the Trial Court is completely contrary to the legal principles laid down by this Court in the decisions mentioned above. The correctness or otherwise of the case of the contesting parties is appreciated from the pleadings, issues, oral and documentary evidence, and a finding can be returned instead of remitting the matter to the Trial Court. Our view may not be understood as holding that the Appellate Court, in the given circumstances, cannot provide opportunities to the parties to adduce evidence, including after accepting a prayer under Order 41 Rule 27 of the Civil Procedure Code, 1908. We express our view that such discretion for remand is exercised when imminently warranted by the circumstances of a given case.
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