Read Time: 05 minutes

Synopsis

The Supreme Court has said that the appellate court is the final court of fact and law and an order of remand cannot be made under Order 41 Rule 23 of the Code of Civil Procedure on a mere asking.

A bench of Justices M M Sundresh and S V N Bhatti allowed an appeal and set aside the order by the Kerala High Court by hearing a plea by Aysha and others.

The appellants were plaintiffs in the suit for partition and separate possession. 

The trial court, after framing the issues, decreed the suit.

Aggrieved by the order, the defendants filed the appeal before the Kerala High Court. By the impugned order, the High Court remitted the matter back to the trial court for fresh consideration with specific reference to Exhibit B-3, which is the registered settlement deed which the respondent/defendant relied upon. 

"The High Court, in our considered view, ought not to have remitted the matter after setting aside the judgment and decree of the trial court. While doing so, the High Court found that the respondent did not adduce sufficient evidence in support of Exhibit B-3. Such an approach cannot be countenanced," the bench said.

In the case, the bench pointed out it was the defendant who filed the appeal while relying upon Exhibit B-3.

"The appellate court is the final court of fact and law. An order of remand under Order 41 Rule 23, Code of Civil Procedure cannot be made for a mere asking. If the High Court is of the view that the evidence is not sufficient enough to decide a particular issue from its point of view, it can very well call for a finding from the trial court," the bench said.

Taking such view of the matter, the bench said it has no hesitation in setting aside the impugned order while requesting the High Court to decide the regular first appeal afresh in accordance with law. 

"If the High Court is of the view that the evidence is not sufficient for coming to a just conclusion, it can call for a finding from the trial court, in which case, it can have a recourse to Order 41 Rule 23-A of the CPC," the bench pointed out.

Having noted the fact that the appeal is of the year 2016, the bench requested the High Court to decide it expeditiously.

The bench also made it clear that the it has not expressed any opinion on the merits of the case.