TaxTMI 
TaxTMI 
2016 (7) TMI 1651
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.... to as the "plaintiff" and "defendants". The suit was decreed by the trial court, granting a permanent prohibitory injunction decree, restraining the defendants from trespassing into the plaint item Nos. 1 and 2 properties and from using any portion of the said properties as a pathway. 3. In the appeal, the lower appellate court found that O.S. No. 18 of 2010 pending before the trial court should have 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 ....
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...., 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 p....
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....der 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 of Order XLI of the Code could be exercised if it finds that the tri....
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....ing 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 for legally valid reasons that a retrial is necessary, it shall have the same powers of remand, as under Rule 23 of Order XLI of the Code. 16. Before the insertion of Order XLI Rule 23-A in the Code, a Constitution Bench of the Supreme Court in Civil Appeal No. 618/1960, A. Sankara Ramayya v. M.S. Lakshminarayanamoorthi and Others in (decided on 14.11.1962) held as follows: "An order remanding a proceeding may ordinarily be made under O. 41, R. 23 of the Code of Civil Procedure when the Trial Court ha....
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....voked." It is curious to note that, this decision of the Constitution Bench was not reported in any leading Law Journal. Considering the importance of the principles in the decision, it was reported in the official journal of the Kerala Judicial Academy, titled 'Journal Vision' (see 2009 (1) JV 1). 17. By the insertion of Rule 23-A to Order XLI of the Code, there is 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 b....
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....e 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....