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Synopsis

The Supreme Court has said the High Court cannot restore the decree of a trial court while hearing an appeal against the remand order by the appellate court.

A bench of Justices Abhay S Oka and Ujjal Bhuyan set aside such an order passed by the High Court on December 22, 2022 as well as impunged order by the district court of October 31, 2013, "due to more than one glaring errors".

"The only logical order which the High Court could have passed was of setting aside the order of remand and directing the First Appellate Court to decide the appeal on merits. The reason is that the First Appellate Court had passed the order of remand by setting aside the decree in its entirety and while doing so, no adjudication was made on the factual and legal issues. The appellants cannot be deprived of the remedy of first appeal," the bench said.

Appellants P E Prasannakumari and others were original defendants. A suit, filed by the respondents-plaintiffs T K Ambujakshi through legal representatives, was decreed by the Trial Court.

Being aggrieved by the decree of the Trial Court, the appellants preferred an appeal under Section 96 of the Code of Civil Procedure, 1908 before the District Court being the First Appellate Court. The District Court by its judgment of October 31, 2013 allowed the appeal in part. 

The District Court proceeded to set aside the decree of the Trial Court and remanded the suit for fresh disposal in accordance with law. The appellants then preferred an appeal under Clause (u) of Rule 1 of Order XLIII of the CPC before the High Court. 

However, by the impugned judgment of December 22, 2022, the High Court set aside the order of remand passed by the First Appellate Court and restored the decree of the Trial Court.

Having heard the counsel for the parties, the bench pointed out the errors by the High Court.

It was an appeal preferred by the appellants before the High Court. If the High Court was of the view that there was no merit in the appeal, the High Court could have at highest confirmed the order of remand passed by the First Appellate Court. However, the High Court has proceeded to set aside the order of remand and restored the decree of the Trial Court. The original plaintiffs were not aggrieved by the order of remand, the bench noted.

"The second error committed by the High Court is that substantial questions of law were not framed by the High Court as it is well-settled that an appeal from an order under Clause (u) of Rule 1 of Order XLIII of the CPC will be governed by the principles under Section 100 of the CPC," it said.

While setting aside the orders by the High Court and the District Court, the bench restored the appeal to the file of the District Court Alapuzha. "We direct that the restored Appeal be listed before the Principal District Judge at Alappuzha on 22nd April, 2024 when the parties to this Appeal will remain present before the District Court," the bench ordered.

The court directed the District Court to give necessary priority to the hearing of the appeal as the restored appeal is of year 2008.

It also left all questions open to be decided by the District Court.