2016 (7) TMI 1651 - HC - Indian Laws

Suit for injunction simpliciter - suit was decreed by the trial court, granting a permanent prohibitory injunction decree, restraining the defendants from trespassing into the plaint item Nos. 1 and 2 properties and from using any portion of the said properties as a pathway - HELD THAT - On a close reading of Rule 23-A of Order XLI of the Code it will be evident that, to invoke the power, vested in an appellate court, to remand a case, twin satisfactions will have to be arrived at. Firstly, the appellate court, on an analysis of the facts and on applying the principles of law, should find that the decree is to be reversed. Only after taking such a decision, the appellate court can step into the next arena. Second condition to be satisfied for invoking the power is that, the appellate court on merits, should find that a retrial is essential for the complete adjudication of the lis between the parties. Well settled is the proposition of law that whether the court should or should not remand a case is one of discretion. Surely, the discretion has to be exercised on sound and reasonable premises and guided by judicial principles. If only these two conditions are satisfied, a remand under Order XLI Rule 23-A of the Code could be legally justified. Merely on establishing any one of the conditions mentioned above, an appellate court shall not remand a case to the lower court. In other words, these twin conditions are conjunctive and not disjunctive. Insofar as a remand under Order XLI Rule 23 of the Code is concerned, it can be called a restricted or limited remand. An order of remand passed by an appellate court by invoking Order XLI Rule 23A of the Code is wider in scope. The impugned judgment is set aside. The matter is remitted back to the lower appellate court - Appeal allowed.

Summary

Issues Involved:
1. Legality of the remand order by the lower appellate court.
2. Applicability of Order XLI Rules 23, 23-A, and 25 of the Code of Civil Procedure, 1908.
3. Justification for joint trial of O.S. No. 18/2010 and O.S. No. 21/2010.

Detailed Analysis:

1. Legality of the Remand Order by the Lower Appellate Court:
The plaintiff challenged the lower appellate court's judgment and decree, which set aside the trial court's decree and remanded the matter for a joint trial with another pending suit. The trial court had initially decreed in favor of the plaintiff, granting a permanent prohibitory injunction against the defendants. The lower appellate court found that the suits should have been tried together, as the defendants suffered prejudice due to separate trials.

2. Applicability of Order XLI Rules 23, 23-A, and 25 of the Code of Civil Procedure, 1908:
The court analyzed the provisions governing the appellate court's power to remand a case. Order XLI Rule 23 applies when a suit is disposed of on a preliminary point and the appellate court reverses the decree. Rule 25 applies when the trial court omits to frame or try any essential issue. However, the case at hand involves Rule 23-A, which allows remand when a decree is reversed in appeal and a retrial is deemed necessary. The court emphasized that remand should not be made merely for the asking and should be based on compelling legal grounds.

3. Justification for Joint Trial of O.S. No. 18/2010 and O.S. No. 21/2010:
The plaintiff had filed an application for a joint trial, which was dismissed as the defendants opposed it. The defendants later contended that the suits should have been tried together, raising the issue before the lower appellate court. The court noted that the lower appellate court did not consider the contentions on merits and mechanically remanded the case. The appellate court should have first decided if reversing the decree was essential and then examined whether a retrial was necessary. The court concluded that the invocation of power under Order XLI Rule 23-A by the lower appellate court was improper and legally unsustainable.

Conclusion:
The appeal was allowed, and the impugned judgment was set aside. The matter was remitted back to the lower appellate court to consider the entire matters on merit, bearing in mind the principles discussed. The court clarified that no fetter was created on the lower appellate court's power to invoke its jurisdiction under Order XLI Rule 23-A if the conditions were satisfied. The parties were directed to appear before the lower appellate court on 16.08.2016.