HAWA SINGH Vs. UNION OF INDIA & ORS.

JUDGEMENT

(1.) On 8.8.2016 when notice was issued in this second appeal the following order was passed:-

(2.) I have pointed out to counsel for the respondents the recent judgment of the Supreme Court in the case of Lisamma Antony and Another v. Karthiyayani and Another (2015) 11 SCC 782 which holds that appellate courts cannot remand the matters except under Order 41, Rule 23 CPC where suit is decided only on a preliminary issue ie all issues are decided or under Order 43, Rule 23 A CPC when a re-trial/additional evidence is necessary, and, if record of the trial court is otherwise complete it is the appellate court which must decide the matters on merits and remand the matters to the court below. The relevant paras of the judgment of the Supreme Court in the case of Lisamma Antony and Another (supra) read as under:-

(3.) It is seen that in the present case on behalf of the appellant challenge is laid to the impugned judgment of the first appellate court which remands the matter to the trial court for fresh decision although the trial court did not by its judgment limit its decision in the suit only on preliminary issues and nor has the respondent required or requested leading of additional evidence. Therefore, in view of Order 41, Rule 24 CPC read with the ratio of the recent judgment of the Supreme Court in the case of Lisamma Antony and Another (supra), it is the first appellate court which has to decide the appeal on merits as per record of the trial court.