TaxTMI 
TaxTMI 
2016 (7) TMI 1651
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....ve been tried with this case. It further found that the defendants suffered prejudice on account of the fact that the suits were not tried together. 4. Subject matter in these two suits is said to be a pathway. According to the plaintiff, there is a public pathway running through the plaint item No. 3, lying on the southern side of plaint item No. 1 and 2. Plaint item No. 3 belongs to the defendants. Per contra, the defendants contended that the public pathway is running thorough the plaintiff's property. 5. It is contended by the plaintiff that, a pathway originating from a public road on the western side of the plaint item No. 1 and 2 passes through the northern side of the first defendant's property and it reaches on the bank of a water channel. There is a small bridge provided for crossing the water channel towards east and the way then proceeds further. The plaintiff further contended that, this way is a public way. The defendants are trying to shift the way to the northern side, so as to save their property and to grab a portion of the plaintiff's land for using as a public way. 6. First defendant contended that the plaintiff attempted to block the public....
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....out the miscarriage of justice resulted by trying the suits separately. 11. It is true that, the defendants opposed the application filed by the plaintiff for joint trial of O.S. No. 18/2010 with O.S. No. 21/2010. It is conceded by both sides that the application was filed on the eve of the trial. That would have been a prominent reason to disallow the application. By no stretch of reasoning, it can be found that the opposition offered by the defendants was justifiable. But, in a given case, if such an order is essential for the ends of justice and for adjudicating the whole issues between the parties, the court is not powerless to order a joint trial. 12. Now, I shall consider the legality of the impugned judgment making a remand. Order XLI Rules 23, 23-A and 25 of the Code are the provisions governing the appellate court's power to remand a case. Powers under Order XLI Rule 23 of the Code arises, where a court from whose decree an appeal is preferred, has disposed of the suit upon a preliminary point and where the appellate court decides to reverse the decree. In the case on hand, such a situation does not arise. 13. Power vested in an appellate court under Rule 25 o....
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....rt reverses the decision of the Trial Court. An order of retrial after remand may also be made in exercise of the inherent jurisdiction of the Court where the Court of appeal is satisfied that there has been no proper trial or no complete or effectual adjudication of the proceeding and the party complaining of the error or omission or irregularity has suffered material prejudice on that account. Such an order may also be made to prevent abuse of the process of Court. But power to order retrial after remand, where there has already been a trial on evidence before the Court of first instance, cannot be exercised merely because the Appellate Court is of the view that the parties who could lead better evidence in the court of first instance have failed to do so. A trial de novo, after setting aside a final order passed by the Court of first instance may therefore be made in exceptional circumstances, where there has been no real trial of the proceeding, or where allowing the order to stand would result in abuse of the process of Court the District Court did not decide the appeals on the merits, but merely ordered that the cases be remanded for retrial. In so ordering, in our judgment, ....
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....aw that whether the court should or should not remand a case is one of discretion. Surely, the discretion has to be exercised on sound and 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. 19. My view is fortified by certain observations made by the Supreme Court in Municipal Corporation, Hyderabad v. Sunder Singh, (2008) 8 SCC 485. Although the facts are different, the principle of law stated in paragraph 32 and 33 may be useful. 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. These aspects have been clarified by the Supreme Court in the above mentioned decision. 20. I have carefully perused the impugned judgment. Learned Sub Judge has not at all considered the contentions on....