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TMI Blog2017 (4) TMI 1447X X X X Extracts X X X X X X X X Extracts X X X X ..... e legality of the remand order in an appeal filed under Order 43 Rule 1(u) of the Code. Indeed, once the High Court came to a conclusion that the remand order was bad in law then it could only remand the case to the first Appellate Court with a direction to decide the first appeal on merits. It is well settled law that the jurisdiction to decide the appeal on merits can be exercised by the Appellate Court only when the appeal is filed under Section 96 or 100 of the Code against the decree. Such was not the case here - the High Court had no jurisdiction to consider much less deciding the entire case of the parties on merits in such appeal. Appeal allowed. - Civil Appeal No. 5540 Of 2017 (Arising out of S.L.P.(c) No. 2771 of 2014) - - - Dated:- 24-4-2017 - R.K. Agrawal And Abhay Manohar Sapre, JJ. JUDGMENT Abhay Manohar Sapre, 1) Leave granted. 2) This appeal is filed by the plaintiff against the final judgment and order dated 26.09.2013 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in Civil Misc. Appeal No.645 of 2012 whereby the learned Single Judge of the High Court allowed the appeal filed by the defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure P-10 to SLP paper book) the first Appellate Judge allowed the appeal, set aside the judgment/decree of the Trial Court and remanded the case to the Trial Court for deciding the suit afresh on merits uninfluenced by any of the observations made by him in the judgment. The parties were granted liberty to adduce additional evidence in support of their case in the Trial Court. 9) Felt aggrieved by the aforesaid judgment, the respondents (defendants) filed C.M.A. No.645 of 2012 before the High Court under Order 43 Rule 1 (u) of the Code. 10) By impugned judgment, the learned Single Judge allowed the appeal, set aside the judgment of the first Appellate Court and dismissed the suit by restoring the judgment and decree of the Trial Court. Felt aggrieved, the plaintiff has filed this appeal by way of special leave before this Court. 11) Heard Mr. D. Bharat Kumar, learned counsel for the appellant and Mr. Y. Raja Gopala Rao, learned counsel for the respondents. 12) Having heard learned Counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned judgment and remand the case to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23-A, and 25. 18) So far as Order 41 Rule 23 is concerned, it enables the Appellate Court to remand the case to the Trial Court when it finds that the Trial Court has disposed of the suit upon a preliminary point. The Appellate Court in such cases is empowered to direct the Trial Court to decide all the issues on evidence on record. 19) So far as Rule 23-A is concerned, it enables the Appellate Court to remand the case to the Trial Court when it finds that though the Trial Court has disposed of the suit on all the issues but on reversal of the decree in appeal, a re-trial is considered necessary by the Appellate Court. 20) So far as Rule 25 is concerned, it enables the Appellate Court to frame or try the issue if it finds that it is essential to the right decision of the suit and was not framed by the Trial Court. The Appellate Court in such case may, accordingly, frame the issues and refer the same to the Trial Court to take the evidence and record the findings on such issues and return to the Appellate Court for deciding the appeal. In such cases, the Appellate Court retains the appeal to itself. 21) Now coming to the facts of the case, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Court but not beyond that. In other words, the High Court should have seen that Order 43 Rule 1(u) gives a limited power to examine the issue relating to legality of remand order, as is clear from Order 43 Rule 1(u) which reads thus:- 1(u) an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court 25) It is well settled law that the jurisdiction to decide the appeal on merits can be exercised by the Appellate Court only when the appeal is filed under Section 96 or 100 of the Code against the decree. Such was not the case here. 26) In the light of abovementioned discussion, we are of the opinion that the High Court had no jurisdiction to consider much less deciding the entire case of the parties on merits in such appeal. 27) We are also unable to agree with the High Court when it held that the first Appellate Court instead of remanding the case to the Trial Court should have heard the appeal on merits. This finding, in our view, is bad in law for the reason that firstly, it was not possible for the first Appellate Court to have recorded the evidence at the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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