Monday, 5 November 2018

When appellate court should remand case for de novo re- trial?

 The trial Court in the present case has proceeded to decree the suit essentially relying on the Commissioner's report and on the assumption that the said report has been proved. For assuming that the said report has been proved, the trial Court perhaps took note of the fact that defendant did not raise any objection with reference to the Commissioner's report. Merely because no objection was raised by the defendant to the Commissioner's report that does not mean that the report stands proved on record. There is established procedure known to law by which the Commissioner's report can be proved on evidence. That has not been done in the present case. In such a situation, the trial Court could not have decided the suit on merits. For, in absence of any oral evidence or for that matter evidence by way of affidavit of any party, the issues as framed cannot be decided as having been established one way or the other. In the circumstances, there is palpable and manifest material irregularity committed by the trial Court in the conduct of the trial in the present case. Indubitably, this would warrant exercise of powers under Section 99 read with Order 41, Rule 23A of the Code so as to remand the case to the trial Court for a de novo trial.
IN THE HIGH COURT OF BOMBAY

First Appeal No. 474 of 1988

Decided On: 09.08.2002

Khurshed Banoo Vs. Vasant Mallikarjun Manthalkar

Hon'ble Judges: 
A.M. Khanwilkar, J.

Citation: AIR 2003 Bom 52.
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