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TMI Blog2016 (7) TMI 1651X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. - F.A.O. (R.O.) No. 341 of 2014 - - - Dated:- 20-7-2016 - A. Hariprasad, J. For Appellant: M. Narendra Kumar, Adv. For Respondents: G. Sreekumar, Adv. JUDGMENT A. Hariprasad, J. 1. Plaintiff in O.S. No. 21/2010 before the Court of Munsiff, Pala, a suit for injunction simpliciter, is the appellant. He challenges the lower appellate court's judgment and decree, whereby the decree in the suit was set aside and the matter was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntering the application, they contended that all the parties in O.S. No. 21/2010 are not parties to O.S. No. 18/2010. They further contended that the nature of reliefs claimed in both the suits are different. However, the joint trial application was dismissed by the trial court after hearing both sides. The question then arises for consideration is, whether remand of the case for joint trial at the instance of the defendants is legally allowable, that too without considering the legal principles? 8. Heard Sri M. Narendra Kumar, the learned Counsel appearing for the plaintiff and Sri G. Sreekumar the learned Counsel appearing for the defendants. 9. Sri Narendra Kumar contended that the remand order is unsustainable, both on facts and law. According to him, the plaintiff, with all earnestness, attempted to get the suits jointly tried. However, that was strongly opposed by the defendants and they got the application dismissed. Thereafter, when the suit was decreed, they raised a ground before the lower appellate court that, the trial court should have tried these two suits jointly. According to Sri Narendra Kumar, they are estopped from raising such a grievance before the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al provision applicable to this case is one under Order XLI Rule 23-A of the Code. It reads as follows: 23-A. Remand in other cases-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23. 15. This provision was inserted in the Code by Act 104 of 1976 with effect from 01.02.1977. Before its introduction, the appellate court could have remanded a case to the trial court when it was decided on a preliminary point and the appellate court reversed the decree in appeal and decided to direct the court below to try all issues arising in the case and also when the appellate court found that there was an omission by the trial court in framing or trying any issue essential for the right decision of the suit on merits. However, by adding Rule 23-A to Order XLI, the power to remand, vested in an appellate court, has been considerably enhanced. Even in a case, which is not decided on a preliminary point, when the decree is reversed in appeal and the appellate court thinks f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s perceivable enlargement in the appellate court's power to remand. But still the fundamental principle that a remand shall not be made for a mere asking remains unchanged. Even after the Amendment Act 104 of 1976, many decisions of the Apex Court reiterated the principle that remand of the case by the appellate court shall not be done as a matter of course. It bas been held in Purushotham Reddy Anr. v. M/s. Pratap Steels Ltd. (AIR 2002 SC 771) that, an appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or 23A or Rule 25 of Order XLI of the Code. An unwarranted order of remand gives the litigant an undeserved lease of life and therefore must be avoided. It is therefore clear that an appellate Judge should possess the ability and wisdom to foresee the difficulties and prejudices that is likely to be suffered by a party, who will be compelled to fight another round of litigation in an inferior court. Remand of a case shall be made only when compelling legal grounds exist and it becomes necessary to do complete justice between the parties. 18. On a close reading of Rule 23-A of Order XLI of the Code it will be evident t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary. In the absence of any such finding in the impugned judgment, I am of the view that invocation of power under Order XLI Rule 23-A of the Code by the lower appellate court was improper and therefore legally unsustainable. 21. The submission of the learned counsel for the defendants that they would suffer prejudice if both the suits were separately tried is a matter to be decided by the court concerned after deciding whether the decree under challenge is liable to be reversed. For the above reasons, I am constrained to set aside the judgment of the lower appellate court and remand the case to the trial court. In the result, the appeal is allowed. The impugned judgment is set aside. The matter is remitted back to the lower appellate court. It shall consider the entire matters on merit and take a decision in the appeal, bearing in mind the above mentioned principles. It is made clear that no fetter is created by this judgment in the power of the lower appellate court to invoke its jurisdiction under Order XLI Rule 23-A of the Code, if the conditions mentioned above are satisfied. The parties are directed to appear before the lower appellate court on 16.08.2016. - - T ..... 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