PARUKUTTY AMMA Vs. REGHUNADHAN

JUDGEMENT

(1.) THE plaintiff in O. S. No. 766 of 1995 on the file of the Additional Sub Court, Irinjalakuda is the petitioner in this Original petition. THE petitioner filed the suit for recovery of money. THE respondent-defendant though appeared in the court below did not file a written statement. So he was set ex parte under 0. 9 R. 6 of the Code of Civil Procedure. Subsequently the suit was also decreed ex parte. THE respondent filed a petition under 0. 9 R. 13 for setting aside the ex parte decree. THE trial court found that the respondent had failed to show any sufficient cause for his non-appearance on the date on which the suit was posted for filing the written statement. So the petition was dismissed. THE respondent filed C. M. A. No. 106 of 1999 before this Court challenging that order. THE C. M. A. was also dismissed. THE defendant filed A. S. No. 572 of 1999 before this Court challenging the ex parte decree passed in the suit. A Division Bench of this Court considered the matter on its merits and found that the trial court failed to set out the facts in the judgment and then proceeded to give the reasons for the conclusion. This Court set aside the judgment and decree passed by the Court below and remanded the matter to the trial court. THE operative portion of the order reads as follows: "we therefore remit the matter to the court below for fresh consideration. THE parties to appear before the court below on 5. 11. 2001. "

(2.) A reading of the judgment of the Division Bench makes it clear that when the Division Bench set aside the judgment and decree passed by the court below and remanded the case for fresh consideration, the plaintiff and defendant were directed to appear before the Court below. According to the petitioner in view of the order of dismissal passed in the petition filed under 0. 9 R. 13 to set aside the decree, the defendant cannot be allowed to file a written statement. At best, he can be allowed to cross examine the witness of the plaintiff and argue the case.

(3.) THE crucial question arising for consideration in this o. P is what exactly is the effect of the remand order passed by the appellate court in such cases. When the appellate court decides to remand the case, that remand order is governed by the provisions of O. 41 R. 23 or 23a. R. 23 contained in the present Code deals with remand on a preliminary point. R. 23a deals with remand in other cases. THEre was conflict of opinion with regard to the scope of remand under R. 23 prior to amendment in the year 1976. In Kerala R. 23 was amended with effect from 9. 6. 1959 and in view of the amended provision the appellate court can remand the case if it considers it necessary in the interest of justice to remand the case.