Under which exceptional circumstances the Appellate court can remand the case to trial court?

 An order of remand prolongs and delays the litigation and

hence, should not be passed unless the appellate court finds that a re-trial is required, or the evidence on record is not sufficient

to dispose of the matter for reasons like lack of adequate

opportunity of leading evidence to a party, where there had been no real trial of the dispute or there is no complete or effectual

adjudication of the proceedings, and the party complaining has

suffered material prejudice on that account.1 Where evidence has already been adduced and a decision can be rendered on appreciation of such evidence, an order of remand should not be passed remitting the matter to the lower court, even if the lower court has omitted to frame issue(s) and/or has failed to determine any question of fact, which, in the opinion of the appellate court, is essential. The first appellate court, if required, can also direct the trial court to record evidence and finding on a particular aspect/issue in terms of Rule 25 to Order XLI, which then can be taken on record for deciding the case by the appellate court.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2023

ARVIND KUMAR JAISWAL (D) THR. LR. Vs DEVENDRA PRASAD JAISWAL VARUN

FEBRUARY 13, 2023.

Leave granted.

In our opinion, the impugned judgment of the High Court

remanding the case to the trial court by relying upon Section 33

and Order XX of the Code of Civil Procedure, 1908 (the ‘Code’),

overlooks the provisions of Rule 23, 23A, 24 and 25 of Order XLI of

the Code.

An order of remand prolongs and delays the litigation and

hence, should not be passed unless the appellate court finds that a

re-trial is required, or the evidence on record is not sufficient

to dispose of the matter for reasons like lack of adequate

opportunity of leading evidence to a party, where there had been no

real trial of the dispute or there is no complete or effectual

adjudication of the proceedings, and the party complaining has

suffered material prejudice on that account.1 Where evidence has

already been adduced and a decision can be rendered on appreciation

of such evidence, an order of remand should not be passed remitting

the matter to the lower court, even if the lower court has omitted

to frame issue(s) and/or has failed to determine any question of

fact, which, in the opinion of the appellate court, is essential.

The first appellate court, if required, can also direct the trial

court to record evidence and finding on a particular aspect/issue

in terms of Rule 25 to Order XLI, which then can be taken on record

for deciding the case by the appellate court.

In the present case, the High Court, as the first appellate

court, which is also a court of fact and law, has passed an order

of remand observing that the judgment of the trial court was, in

its opinion, not written as per the mandate of Section 33 and Rule

4(2) and 5 of Order XX of the Code, as the discussion and reasoning

on certain aspects was not detailed and elaborate.

This is not a case where the evidence is not adduced and on

record. In fact, the first portion of the judgment of the High

Court elaborately records the contention of the parties and the

facts and evidence relied by the parties.

In view of the aforesaid, we allow the present appeal, and

set aside the impugned judgment and restore the first appeal to its

original number before the High Court, to be decided on merits and

in accordance with law, as per the provision of order XLI of the

Code. As the appeal has been pending for a considerable time, the

1 See Shivakumar and Others v. Sharanabasappa and Others, (2021) 11 SCC 277; and Bachahan Devi and Another v.

Nagar Nigam, Gorakhpur and Another, (2008) 12 SCC 372.

3

High court would decide the appeal expeditiously as possible.

We clarify that we have not expressed any opinion on merits

of the of case. There would be no order as to costs.

Pending application(s), if any, shall stand disposed of.

..................J.

(SANJIV KHANNA)

..................J.

(M.M. SUNDRESH)

NEW DELHI;

FEBRUARY 13, 2023.

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