Whether appellate court can decree suit considering additional evidence without giving opportunity to other side to lead rebuttal evidence?

 First, it took into consideration the additional piece of evidence while deciding the appeals on merits without affording any opportunity to the Appellants herein (who were Respondents in the first appeals) to file any rebuttal evidence to counter the additional evidence adduced by the Respondents (Appellants before the first Appellate Court). This caused prejudice to the Appellants herein because they suffered the adverse order from the Appellate Court on the basis of additional evidence adduced by the Respondents for the first time in appeal against them. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3033 of 2006, Civil Appeal No. 8185 of 2018 (Arising out of S.L.P. (C) No. 21796 of 2018) and (D. No. 15579/2017)

Decided On: 10.08.2018

 The Corporation of Madras.  Vs. M. Parthasarathy and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and S. Abdul Nazeer, JJ.

Citation: AIR 2018 SC 3777.

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When appellate court should not remand case to lower court?

In the present case, the suit was filed by the plaintiff in the year 1976 and the remand order passed by the lower appellate court in the year 2000 i.e. after 24 years. The relief granted by the appellate Court by way of remand order was absolutely unwarranted. The lower appellate court itself should have framed the points and could have gone into the issues raised before it and ought to have decided the appeal on merits, one way or the other. The appellate court is also the court of facts and law and it could have framed substantial questions of law and decide the appeal on merits. The Hon'ble Supreme Court in number of pronouncements has held that the powers under Order XLI Rule 23 cannot be exercised in a casual and routine manner.

The lower appellate court itself could have considered these legal aspects. It was not that the lower appellate court was not empowered to adjudicate these legal points. It was not necessary to remand the matter back to the trial court on the legal aspects. Since the appeal is a continuous proceeding of the suit, it was open for the lower appellate court to exercise its jurisdiction and address the legal issues and all other issues felt for its consideration by framing necessary points and then decide the matter by one way or the other. The lower appellate court can do so under Sub-section (2) of Section 107 of C.P.C. However, the lower appellate court has failed in in discharging its duties to exercise its jurisdiction vested in it and rather chosen easier way to remand the matter back to the trial court.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Appeal From Order No. 37 of 2000 and Civil Application No. 3374 of 2000

Decided On: 27.10.2010

 Beniram Shriram Wani, Vs.  Ramchandra Nathalal Gujarathi and Ors.

Hon'ble Judges/Coram:
S.S. Shinde, J.

Citation: 2011(2) ALLMR 667,2011(3) MHLJ545

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Basic principle for exercise of power of remand of case to lower court

 From   the   cases   cited   by   Mr.   Deshmukh,   it
would   be   clear   that   substantial   compliance   of   Order
XLI Rule 31 is sufficient if justice has not suffered
by   non­framing   the   proper   issues   for   determination.
Failure to frame points for determination was held to
be not resulting into vitiating the judgment if the
appellate Court has considered the entire evidence on
record and properly appraised the evidence.   It was
further cautioned that the power to remand should not
be   ordinarily   exercised   merely   because   certain
technical lacuna remains there.                 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 631 OF 2012
WITH
CIVIL APPLICATION NO.10748 OF 2012
 Motiram Lobhaji Pawar
   
        VERSUS
 Pandurang Chudaman Kalam

CORAM    : M.T. JOSHI, J.

 DATE OF PRONOUNCING : 01ST JULY, 2013

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When appellate court shall remand case to lower court?

 A bare reading of the provision makes it clear that the same comes into operation when the Court, from whose decree the appeal is preferred, has omitted to frame or try and issue, or to determine any question of fact which appears to the appellate court essential for the right decision of the suit upon the merits. In order to bring in application of Order XLI Rule 25 the appellate court must come to a conclusion that the lower court has omitted to frame issues and/or has failed to determine any question of fact which in the opinion of the appellate court are essential for the right decision of the suit on merits. Once the appellate court comes to such a conclusion it may, if necessary, frame the issues and refer the same to the trial court. In other words there is no compulsion on the part of the appellate Court to do so. This is clear from the use of the expression 'may'. But the further question that arises is whether in such a case the appellate court is bound to direct the trial court to take additional evidence required. This is a mandatory requirement as is evident from the provision itself because it provides that the lower court shall proceed to try such case and shall return the evidence to the appellate court together with findings therein and the reasons therefor. As noted above, the provision becomes operative when the appellate court comes to the conclusion about the omission on the part of the lower court to frame or try any issue. Once the appellate court directs the lower court to do so, it is incumbent upon the trial court to take additional evidence required. As has been rightly contended by learned counsel for the appellant, there may be cases where additional evidence may not be required. But where the additional evidence is required, then the lower court has to return the evidence so recorded to the appellate court together with the findings thereon and the reasons therefor. Requirement for recording the finding of facts and the reasons disclosed from the facts is because the appellate court at the first instance has come to the conclusion that the lower court has omitted to frame or try any issue or to determine any question of fact material for the right decision of the suit on merits. It has to be noted that where a finding is called for on the basis of certain issues framed by the appellate court, the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the court of the first instance. This position was highlighted in Gogula Gurumurthy and Others v. Kurimeti Ayyappa (1975(4) SCC 458), where it was inter-alia observed in para 5 as follows:

"We consider that when a finding is called for on the basis of certain issues framed by the appellate Court the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance. We find the same view taken in Gopi Nath Shukul v. Sat Narain Shukul (AIR 1923 All 384)."

Supreme Court of India

Smt. Bachahan Devi & Anr vs Nagar Nigam, Gorakhpur & Anr on 5 February, 2008

Bench: Dr. Arijit Pasayat, Lokeshwar Singh Panta

           CASE NO.:
Appeal (civil)  992 of 2008

Citation:2008(2)ALLMR 299 SC,AIR 2008 SC 1282

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