Remand under Civil Procedure Code must be justified by recorded reasons; appellate court cannot order retrial without proper basis.
Order XLI Rules 23 and 23A of the Code of Civil Procedure permit remand only in limited circumstances: Rule 23 applies where a suit is disposed of on a preliminary point and the decree is reversed in appeal, while Rule 23A applies where retrial becomes necessary and the decree is liable to be reversed. The appellate court must record reasons and decide the appeal on its own merits; remand cannot be ordered merely because the matter appears difficult. Here, the suit was not decided on a preliminary issue and no proper basis for retrial or reception of secondary evidence was recorded. The remand order was unsustainable and was set aside, with the appeal sent back to the High Court for decision on merits.
Issues: Whether the High Court was justified in setting aside the trial court's decree and remanding the suit for fresh consideration, including for reception of secondary evidence, when the suit was not decided on a preliminary issue and the conditions for remand were not satisfied.
Analysis: Order XLI Rule 23 of the Code of Civil Procedure, 1908 applies only where the suit has been disposed of on a preliminary point and the decree is reversed in appeal. The provision is enabling and confers a discretionary power, but such power cannot be exercised routinely or merely because the appellate court finds the matter difficult to decide. The appellate court must record its own findings and cannot remit the matter on ipse dixit. Order XLI Rule 23A is also attracted only where a retrial becomes necessary and the decree is liable to be reversed. In the present case, the suit was not decided on a preliminary issue, no proper basis for remand was recorded, and the appellate court did not properly justify a retrial or the reopening of secondary evidence.
Conclusion: The remand order was unsustainable and was set aside; the matter was sent back to the High Court to decide the appeal on merits.
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AI Drafter ✕
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