AMITAVA RAKSHIT Vs. PRARANTA DAS

JUDGEMENT

(1.) Law on the point is no longer res integra that an appeal filed under the provision of Order 43 Rule 1 (u) can only be heard on substantial questions of law in terms of Section 100 of the Code of Civil Procedure.

(2.) In J. Balaji Singh Vs. Diwakar Cole and Ors., 2017 14 SCC 207, the Hon'ble Supreme Court held that a remand order can only be passed by the Court of Appeal in three situations (i) Under Order XLI Rule 23 of the Code of Civil Procedure, matter can be remanded where Trial Court disposed of the suit upon preliminary point; under such condition, Appellate Court can direct Trial Court to decide all issues based on evidence; (ii) under Order XLI Rule 23A, even though Trial Court decided all issues, but Appellate Court considers necessity of retrial of the matter after reversal of decree passed by the Trial Court; (iii) Under Order XLI Rule 25 Appellate Court can frame or try an issue if it finds that such issue is essential for right decision in suit and that issue was not framed by the Trial Court. In all the three situations, Appellate Court can frame issue and refer the same to Trial Court for taking evidence and record findings of such issues, and return the same to the Appellate Court for deciding the appeal. In such situation, Appellate Court retains appeal to itself. However, once Appellate Court decides to remand the matter, it is not required for Appellate Court to adjudicate on matters involved in dispute. Discussion and finding on issues involved in the matter after the Appellate Court coming to conclusion that the matter needs to be remanded, is uncalled for.

(3.) I am, however, constrained to record that the instant appeal was admitted by the Division Bench of this Court vide Order dated 12th May, 2017. However, at the time of admission of the appeal no substantial question of law was formulated. Therefore, taking aid of sub-Section (5) of Section 100 of the Code of Civil Procedure this Court formulates the following substantial questions of law and proceed with the hearing of the appeal:-