LABH CHAND Vs. DEVILAL

JUDGEMENT

(1.) The plaintiff-Devilal had brought a suit against defendants Labchand and Dadam Chand. That suit went up to second appellate stage, where in an appeal of the defendants this Court in Second Appeal No, 25/89 set aside the judgment and decree of the lower Appellate Court and remanded the case to the first Appellate Court to decide the appeal afresh after deciding the question setout in the judgment after permitting the respective parties to lead evidence in support of their respective cases as pleaded by the defendant/appellant in applications under Order VI, Rule 17, Order VII. Rule 7. C.P.C. On the case reaching the first Appellate Court three applications we are moved, two by plaintiff-Devi Lal and one by defendant Labchand. Plaintiff Devilal had moved an application under Order VI Rule 17, C.P.C. for amendment of the plaint on the basis of facts which had come to the knowledge of the plaintiff after the decision of this Court in the second appeal. The second application was under Order XLI, Rule 27, C.P.C. for bringing certain documents relating to the proposed amendment on record as an additional evidence. The defendant Labchand moved an application under Order VI, Rule 17, C.P.C. for amending the written statement. The first Appellate Court had rejected all these applications holding that the remand order passed by this Court limited the scope of consideration before him and he could not entertain fresh applications moved before him after the remand.

(2.) The only question involved in this case is as to whether the judgment of this Court in Second Appeal No. 25/89 remanding the case back to the first Appellate Court is a general remand under Order XLI, Rule 23-A, C.P.C. or is a limited contract. The Order XLI visualise three types of remands. First type of remand is under Rule 23 which is, when the lower Court has decided the case on preliminary point and the Appellate Court sets aside the decision of the lower Court on that point. Another type of remand is under Rule 23-A, 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 a retrial is considered necessary. The third type of remand is under Rule 25, C.P.C.. when the Court frames issues and refers the same for trial to the Court from whose decree the appeal is preferred and directs that Court to take additional evidence required. In this type of remand the findings are to be returned to the Appellate Court and the judgment and decree of the lower Court are not set aside while directing remand.

(3.) Examining the remand order contained in the judgment in Second Appeal No. 25/89 it is clearly a remand under Rule 23-A of Order XLI, C.P.C. The case has been remanded for deciding the appeal afresh though certain questions were formulated and directed to be decided by the first Appellate Court. The scope of the appeal before the first Appellate Court was not confined in any manner and no findings were alleged for from the Court below. The judgment and decree of the lower Appellate Court was effectively set aside and a fresh decision was demanded. It cannot be said in these circumstances that it was a limited remand and not a general remand.