Sunday 25 July 2021

Whether lower appellate court can remand the case to trial court if high court has remanded said case to it?

  If such a remand is directed by the second Appellate Court or by the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India, on remand of such matter before the lower Appellate Court, the lower Appellate Court has all the options open including, in turn, remanding the matter to the trial Court if it thinks that such a course is necessary in the ends of justice. Therefore, a Division Bench of Travancore-Cochin High Court in Sivanancha Perumal Piltai Thampuranthozha Pillai appellant v. Thirunamakarasu Pandaram and others respondents, A.I.R. (39)1951 Travancore Cochin 26 has held that when a decree is set aside and the case remanded to the lower Court all the contentions between the parties are before the Court and it is open for the trial Court to go into all the issues arising on such contentions. Only limitation after the remand is as may be contained in the order of remand. If the order of remand restricts the jurisdiction, the Court cannot override those limitations. But if the order of remand is in fact a direction of re-hearing on merits on all issues and all contentions raised by the parties, the jurisdiction is not at all restricted. When the matter is remanded to the lower Appellate Court, the lower Appellate Court has jurisdiction to remand the matter to the trial Court exercising its powers under Order XLI, Rule 23, Civil Procedure Code. However, the power of the remand will have to be exercised sparingly since it will have to be born in mind always that it may prolong the duration of a litigation and the party who is entitled for the fruits of the decree is kept away from it by such prolongation.

Bombay High Court

Laxman Bapu Berad vs Sudhakar Nanasaheb Jawale on 5 August, 1997
Equivalent citations: 1998 (2) BomCR 259,1998(1)ALLMR667,

Bench: N Chapalgaonker
Read full Judgment here: Click here

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