KIRAT SINGH Vs. TRILOK TILAK SINGH

JUDGEMENT

(1.) This is an appeal against the order of remand in a suit filed on the allegations that the property had been partitioned in a particular manner but still the defendants were trying to interfere with his rights. The defence plea was that though partition had taken place, it was neither in the manner stated by the plaintiff nor at the alleged time. It was contended that partition had taken place at a different time and manner. Although the fact of partition was admitted by both the parties yet the time and manner of partition was disputed. The trial Court decreed the suit. In appeal, the defendant-appellants sought permission to file as many as nine documents. In spite of objections by the plaintiff the court admitted these documents in evidence and proceeded to remand the matter to the trial Court with directions to frame additional issues in the light of the documents filed and to decide the matter afresh after affording an opportunity to the parties to lead evidence.

(2.) Sri Ravi Kant, learned counsel for the appellant has vehemently urged that neither additional evidence should have been admitted by the court below nor order of remand could be made merely on the around that some additional evidence was permitted to be filed in appeal. It is not disputed that an order permitting additional evidence under Order 41. Rule 27. C.P.C. is not appealable. The question naturally arises as to whether while assailing the correctness of an order of remand, a party could also question the correctness or legality of the order permitting additional evidence? Order 43, Rule 1 (u) provides for an appeal against an order of remand passed under Rule 23 or Rule 23 (A) of Order 41 only in those cases where an appeal would lie from the decree of the Appellate Court. Order 41. Rule 23 deals with remand where the suit had been decided on a preliminary point and such a decision is reversed in appeal. An amendment made in this Court empowers the Appellate Court to remand a case even in those cases where the appellate Court, while reversing or setting aside the decree under appeal considers it necessary, in the interest of justice to pass such an order. Adopting this amendment Rule 23 (A) was introduced by Act 104 of 1976 which now provides as under "Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and retrial is considered, necessary, the appellate Court shall have the same powers as it has under Rule 23".

(3.) In an appeal under Order 43. Rule 1(u), C.P.C., therefore, what the court is required to examine is the correctness or otherwise of the order of remand, be it under Rule 23 as amended in this High Court) or under Rule 23-A. It is urged for the appellant that the scope of appeal under Clause (u) is very wide and it would also cover those matters on which the first appellate Court may have recorded its findings. If this argument were to be accepted it would result in converting the appeal from an order into one in the nature of a second appeal. An appeal under Clause (u) in scope is confined to the consideration of those matters only which promoted the lower appellate Court to remand the suit and which formed the very foundation of such an order. It is true that the scope of an appeal against an order of remand cannot also be narrowed down so much as to confine it only to the order itself and exclude all those factors and circumstances which may have prompted the court below to remand the case. For example if it becomes necessary to allow amendment due to some enactment or other intervening events requiring additional pleadings from the other side which give rise to additional Issues. In such a situation the appellate Court may find it necessary to remand the case to enable the parties to complete their pleadings and raise additional issues for decision. The party aggrieved by such an order of remand may in an appeal under Clause (u) of Order 43, Rule 1 be allowed to assail the legality of the order allowing the amendment also if it was found to be so intricately inter-twined with the order of remand that it renders it impossible to consider the remand order in isolation. Where such orders can be considered separately the order of remand alone should he considered by the Court. In that event, the scope of appeal under Clause (u) will be confined to consideration of such material only on the basis of which the order of remand was passed.