Order Of Remand Prolongs & Delays Litigation: SC Explains Ambit Of Appellate Court's Power To Remand
The Supreme Court while setting aside the impugned judgment of the High Court remanding the case to the Trial Court has observed that a remand order prolongs and delays litigation.
The Court held that the impugned judgment of the High Court remanding the case to the trial court by relying upon Section 33 and Order XX of CPC overlooks the provisions of of Rules 23, 23A, 24, and 25 of Order XLI of the Code.
The Bench of Justice Sanjiv Khanna and Justice MM Sundresh explained the ambit of the Appellate Court's power to remand and thus observed -
"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. 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."
Advocate Ranjan and Company appeared for the Petitioner while Advocate Anil Kumar Mishra appeared for the Respondent before the Apex Court.
The Bench further observed that the High Court as the First Appellate Court 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.
The Court thus held -
"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."
The Bench accordingly allowed the appeal and set aside the impugned judgment of the High Court and restored the first Appeals to its original number before the High Court to be decided on merits and in accordance with law as per the provisions of Order XLI of CPC.
Cause Title - Arvind Kumar Jaiswal (D) Thr. LR. v. Devendra Prasad Jaiswal Varun
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