2023 (2) TMI 1429 - SC - Indian Laws

Remand set aside; appeal restored and ordered decided on merits under Section 33, Order XX and Order XLI

SC held that remand was improvidently ordered where evidence was on record and no real trial or prejudice necessitating re-trial existed; perceived ... Remand order - correctness of remanding of case to the trial court by relying upon Section 33 and Order XX of the Code of Civil Procedure, 1908 overlooking the provisions of Rule 23, 23A, 24 and 25 of Order XLI of the Code - HELD THAT:- 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. In the present case, the High Court, as the first appellate court, which is also a court of fact and law, 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 - 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 impugned judgment is set aside and the first appeal restored to its original number before the High Court, to be decided on merits and in accordance with law, as per the provision of order XLI of the Code. As the appeal has been pending for a considerable time, the High court would decide the appeal expeditiously as possible. Appeal allowed. The High Court erred in remanding the matter to trial by relying on Section 33 and Order XX, overlooking Rule 23, 23A, 24 and 25 of Order XLI of the Code. 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' - e.g., where there has been 'no real trial,' or 'no complete or effectual adjudication' causing 'material prejudice.' Where evidence has been adduced and a decision can be rendered on appreciation of such evidence, remand is improper; the first appellate court may, under Rule 25 of Order XLI, direct the trial court to record evidence or findings on specific issues for appellate disposal. The impugned remand was unjustified here because evidence was on record and the High Court itself had recorded parties' contentions and evidence. The impugned judgment is set aside; the first appeal is restored for decision on merits under Order XLI. 'There would be no order as to costs.'