- (1.) THE present appeal has been filed by the appellant-defendant challenging the order dated 5.9.11 passed by the Addl. District Judge (Fast Track) No.6, Jaipur City, Jaipur (hereinafter referred to as 'the appellate court') in Civil Regular Appeal No. 9/09, whereby the appellate court has set aside the judgment and decree dated 9.3.09 passed by the Addl. Civil Judge (JD) West Jaipur City, Jaipur (hereinafter referred to as 'the trial court') in Civil Suit No. 12/95 and allowed the application of the respondent-plaintiff for taking additional documents on record under Order XLI Rule 27 of CPC subject to payment of cost of Rs. 2,000/-, and further directed the trial court to decide the suit afresh after granting opportunity to both the parties to produce the evidence in rebuttal in respect of the said documents.
(2.) IN the instant case it appears that the respondent-plaintiff had filed the suit seeking eviction of the appellant-defendant from the suit premises, which suit was dismissed by the trial court vide the judgment and decree dated 9.3.09. The respondent being aggrieved by the said decree had preferred the appeal before the appellate court. During the pendency of the appeal, the respondent submitted an application under Order XLI Rule 27 of CPC for taking on record certain documents. The appellate court vide the impugned order allowed the said application under Order XLI Rule 27 and remanded the case to the trial court as stated hereinabove. Heard the learned counsel Mr. Hemant Sharma for the appellant and Mr. Suresh Pareek for the respondent.
(3.) AT the outset it is required to be stated that the powers of appellate court to remand the case are contained in Rule 23 and 23A of Order XLI of CPC. Rule 23 would apply in a case where the suit has been disputed of on preliminary issue, whereas Rule 23A would apply when the suit has been disposed of otherwise than on preliminary issue. The remand under Rule 25 of the said Order would be a very limited remand wherein the subordinate court can try only such issues as are referred to it for trial and having done so, the said court has to return the case to the appellate court, alongwith the evidence recorded and the findings on the issues referred to it. The Apex Court in case of P. Purushottam Reddy and Anr. Versus Pratap Steels Ltd., (2002) 2 Supreme Court Cases 686 has laid down the scope of remand in para 10 as under:- "10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23-A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before the 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23-A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rule 23 and 23-A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati (AIR at p. 399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand de hors the Rules 23 and 23-A. To wit the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided. " ;