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Synopsis

The Supreme Court has recently held that an order of remand prolongs litigation and hence, should not be passed unless the appellate court finds that a re-trial is required, or the evidence on record is not sufficient to dispose of the matter.

"Where evidence has already been adduced and a decision can be rendered on appreciation of such evidence, an order of remand should not be passed remitting the matter to the lower court, even if the lower court has omitted to frame issue(s) and/or has failed to determine any question of fact, which, in the opinion of the appellate court, is essential. The first appellate court, if required, can also direct the trial court to record evidence and finding on a particular aspect/issue in terms of Rule 25 to Order XLI, which then can be taken on record for deciding the case by the appellate court...", the Supreme Court further held.

A bench of Justices Sanjiv Khanna and MM Sundresh made these observations in an appeal filed against an order of the High Court remanding the case to the trial court by relying upon Section 33 and Order XX of the Code of Civil Procedure, 1908 (CPC) while overlooking the provisions of Rule 23, 23A, 24 and 25 of Order XLI of the Code.

In the case before the Top Court, it was noted that the High Court, as the first appellate court, had passed an order of remand observing that the judgment of the trial court was, in its opinion, not written as per the mandate of Section 33 and Rule 4(2) and 5 of Order XX of CPC, as the discussion and reasoning on certain aspects was not detailed and elaborate.

"This is not a case where the evidence is not adduced and on record. In fact, the first portion of the judgment of the High Court elaborately records the contention of the parties and the facts and evidence relied by the parties..." the Supreme Court noted.

Accordingly, the bench deemed it fit to allow the appeal, set aside the impugned judgment and restore the first appeal to its original number before the High Court, to be decided on merits and in accordance with law, as per the provision of order XLI of the Code.

Case Title: ARVIND KUMAR JAISWAL (D) THR. LR. vs. DEVENDRA PRASAD JAISWAL VARUN