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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 3347-3348 OF 2012
ARISING OUT OF
Special Leave to Appeal (Civil) No(s).19439-19440/2010
JEGANNATHAN APPELLANT
VERSUS
RAJU SIGAMANI & ANR. RESPONDENTS
JUDGMENT
R.M. LODHA, J.
Delay condoned.
Leave granted.
The appellant herein is plaintiff No. 2. He, along
with two others, namely, Gnanasoundari and George filed
a Suit against the present respondent No.1 for
declaration, permanent injunction and mandatory
injunction.
The respondent No. 1 contested the Suit on diverse
grounds.
After recording evidence and on hearing the
parties, the trial Court on September 16, 1999 decreed
plaintiffs' Suit for the grant of permanent injunction.
Aggrieved by the judgment and decree dated
September 16, 1999, the respondent No.1 preferred first
appeal which came up for hearing before the SubordinatePage 2
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Judge, Tiruchirapalli. On hearing the parties, the
first appellate Court, allowed the appeal, set aside
the judgment of the trial Court and remanded the Suit
back to the trial Court with a direction to give an
opportunity to both the parties to let in evidence –
oral and documentary— and then decide the Suit afresh
on merits.
The order of remand dated April 8, 2002 was
challenged by the present appellant and present
respondent No. 2 by filing a Miscellaneous Appeal
before the High Court under Order 43 Rule 1(u) of the
Code of Civil Procedure, 1908 (for short 'the Code').
The High Court, by its order dated 26th September,
2008, held that the Civil Miscellaneous Appeal was not
maintainable and dismissed the appeal on that ground.
The appellant and the respondent No. 2 then filed
a petition before the High Court seeking review of the
order dated September 26, 2008. However, the Review
Petition was also dismissed on November 12, 2009. It is
from these two orders that the present appeal has
arisen.
Order 41 of the Code provides for appeals from
original decrees. The Code empowers the appellate Court
to order remand in three situations. These three
situations are covered by Order 41 Rule 23, Order 41Page 3
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Rule 23A and Order 41 Rule 25 which read as under:
23. Remand of case by Appellate Court —
Where the Court from whose decree an appeal
is preferred has disposed of the suit upon a
preliminary point and the decree is reversed
in appeal, the Appellate Court may, if it
thinks fit, by order remand the case, and
may further direct what issue or issues
shall be tried in the case so remanded, and
shall send a copy of its judgment and order
to the Court from whose decree the appeal is
preferred, which directions to re-admit the
suit under its original number in the
register of civil suits, and proceed to
determine the suit; and the evidence (if
any) recorded during the original trial
shall, subject to all just exceptions, be
evidence during the trial after remand.
23A. Remand in other cases —
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
Appellate Court shall have the same powers
as it has under rule 23.
25. Where Appellate Court may frame issues
and refer them for trial to court whose
decree appealed from —
Where the court from whose decree the appeal
is preferred has omitted to frame or try any
issue, or to determine any question of fact,
which appears to the Appellate Court
essential to the right decision of the suit
upon the merits, the Appellate Court may, if
necessary, frame issues, and refer the same
for trial to the court from whose decree the
appeal is preferred and in such case shall
direct such court to take the additional
evidence required; and such court shall
proceed to try such issues, and shall return
the evidence to the Appellate Court together
with its findings thereon and the reasons
there for within such time as may be fixed byPage 4
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the Appellate Court or extended by it from
time to time.
Order 41 Rule 23 is invocable by the appellate
Court where the appeal has arisen from the decree
passed on a preliminary point. In other words, where
the entire suit has been disposed of by the trial Court
on a preliminary point and such decree is reversed in
appeal and the appellate Court thinks proper to remand
the case for fresh disposal. While doing so, the
appellate Court may issue further direction for trial
of certain issues.
Order 41 Rule 23A has been inserted in the Code
by Act No. 104 of 1976 w.e.f. February 1, 1977.
According to Order 41 Rule 23A of the Code, the
appellate Court may remand the suit to the trial Court
even though such suit has been disposed of on merits.
It provides that where the trial Court has disposed of
the Suit on merits and the decree is reversed in appeal
and the appellate Court considers that retrial is
necessary, the appellate Court may remand the suit to
the trial Court.
Insofar as Order 41 Rule 25 of the Code is
concerned, the appellate Court continues to be in
seisin of the matter; it calls upon the trial Court to
record the finding on some issue or issues and send
that finding to the appellate Court. The power underPage 5
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Order 41 Rule 25 is invoked by the appellate Court
where it holds that the trial Court that passed the
decree omitted to frame or try any issue or determine
any question of fact essential to decide the matter
finally. The appellate Court while remitting some issue
or issues, may direct the trial Court to take
additional evidence on such issue/s.
Insofar as the present case is concerned, the
trial Court had disposed of the suit on merits and not
on a preliminary issue. The first appellate Court set
aside the judgment and decree of the trial Court and
directed the trial Court to decide the suit afresh
after giving parties an opportunity to lead evidence —
oral as well as documentary. The nature of the order
passed by the appellate Court leaves no manner of doubt
that such order has been passed by the appellate Court
in exercise of its power under Order 41 Rule 23A of the
Code.
Order 43 of the Code provides for appeals from
orders. Clause (u) of Rule 1 Order 43 was amended
consequent upon insertion of Rule 23A in Order 41
w.e.f. February 1, 1977. It reads as under:
An appeal shall lie from the following
orders under the provisions of Section 104,
namely:—
x x x x xPage 6
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(u) an order under rule 23 or rule 23A of
Order XLI remanding a case, where an appeal
would lie from the decree of the Appellate
Court;
x x x x x
It is clear from the above provision that an order
of remand passed under Order 41 Rule 23A is amenable to
appeal under Order 43 Rule 1 (u) of the Code.
The High Court relied upon a decision of this
Court in the case Narayanan Vs. Kumaran & Ors. (2004) 4
SCC 26 in holding that Civil Miscellaneous Appeal from
the order of remand was not maintainable. The High
Court was clearly in error. What has been held by this
Court in Narayanan is that an appeal under Order 43
Rule 1 Clause (u) should be heard only on the ground
enumerated in Section 100 of the Code. In other words,
the constraints of Section 100 continue to be attached
to an appeal under Order 43 Rule 1(u). The appeal under
Order 43 Rule 1(u) can only be heard on the grounds a
second appeal is heard under Section 100. There is a
difference between maintainability of an appeal and the
scope of hearing of an appeal. The High Court failed to
keep in view this distinction and wrongly applied the
case of Narayanan in holding that miscellaneous appeal
preferred by the appellant was not maintainable.
The appeals are accordingly allowed.
The impugned order of the High Court is set aside.Page 7
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The C.M.A. No. 1227 of 2002 titled as Jagannathan
and Others Vs. Raju Sigamani is restored to the file of
the Madras High Court, Madurai Bench for hearing and
disposal in accordance with law.
No order as to costs.
.............................J.
(R.M. LODHA)
.............................J.
(H.L. GOKHALE)
NEW DELHI,
02-04-2012
