MURARI LAL Vs. RAM KUMAR OJHA AND ORS.

JUDGEMENT

(1.) This appeal by defendant under Order XLIII rule 1(u) of C.P.C. is directed against the order dated 20.4.2010 in Civil First Appeal No. 5A/2009. By the aforesaid order, the appeal of plaintiff has been allowed and the case has been remanded back to the trial Court for decision afresh on merits. The moot question involved in this appeal is as regards object and scope of power of appellate Court under Order XLI rule 23A of C.P.C.

(2.) The Hon'ble Supreme Court in the case of Municipal Corporation, Hyderabad v. Sunder Singh, 2008 8 SCC 485, has lucidly and succinctly explained the scope and application of the aforesaid provision, as contained under Order XLI rule 23 of C.P.C. with reference to nature of jurisdiction of the appellate Court. Relevant para 18 of the judgment is reproduced below:

(3.) Order XLI rule 23A of C.P.C. in the statute w.e.f. 1.2.1977 provides for application of Order XLI rule 23 of C.P.C. in the matters where the court from whose decree an appeal is preferred has disposed of the case otherwise than on preliminary point, and the decree is reversed in appeal and re-trial is considered necessary, the appellate court shall have the same powers as it has under Order XLI rule 23 of C.P.C. As such, the twin requirements of the provision are to the effect that; (i) The trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and re-trial is considered necessary. In other words, if the appellate Court finds a judgment under appeal to be not satisfactory in the manner required by Order XXII rule 3 C.P.C. or Order XLI rule 21 C.P.C. and, hence, it is not a judgment in the eyes of law, it may set aside the same and send the matter back for rewriting of the judgment so as to protect valuable rights of the parties. However, the appellate Court should be circumspect in ordering remand and it should not be exercised when the case is not covered either by rule 23 or 23A of Order XLI of C.P.C. as an unwarranted order of remand unnecessary prolongs the litigation, which in all fairness should be avoided. (P. Purushottam Reddy and another v. Pratap Steels Ltd, 2002 2 SCC 686), is referred to. Though the provision confers discretionary jurisdiction on the appellate court, but order of remand should not be passed routinely.