Sec 107 (1) (a-c)

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POWERS OF APPELLATE COURT— SECTION 107, RULES 23-29 & 33 ORDER 41 CPC

S. 107. POWERS OF APPELLATE COURT—

1. Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power— a. to determine a case finally;

b. to remand a case;

c. to frame issues and refer them for trial;

d. to take additional evidence or to require such evidence to be taken.

2. Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

POWER TO DECIDE A CASE FINALLY: SECTION 107(1)(A), RULE 24 OF ORDER 41

Section 107(1)(a) and Rule 24 of Order 41 enable the appellate court to dispose of a case finally.

R. 24. WHERE EVIDENCE ON RECORD SUFFICIENT, APPELLATE COURT MAY DETERMINE CASE FINALLY—

Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which Appellate Court proceeds.The general rule is that a case should, as far as possible, be disposed of on the evidence on record and should not be remanded for fresh evidence, except in rare cases.

POWER TO REMAND: SECTION 107(1)(B), RULES 23 & 23-A

Remand means to send back. By passing an order of remand, an appellate court directs the lower court to reopen and retry the case. ▪ On remand, the trial court will readmit the suit under its original number in the register of civil suits and will proceed to determine it as per the directions issued by the appellate court.

R. 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.

R. 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 re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.

CONDITIONS

The appellate court has power to remand a case either under Rule 23 or under Rule 23-A. A remand cannot be ordered lightly. The appellate court should not exercise the power of remand very lightly. As far as possible it should dispose of the appeal finally unless remand is imperative. It can be ordered only if the following conditions are satisfied.

1. THE SUIT MUST HAVE BEEN DISPOSED OF BY THE TRIAL COURT ON A PRELIMINARY POINT.—

Before the court can exercise the power of remand under Rule 23, it is necessary to show that the lower court has disposed of the suit on a preliminary point. ▪ A point can be said to be a preliminary point, if it is such that the decision thereon in a particular way is sufficient to dispose of the whole suit, without the necessity for a decision on the other points in the case. Such preliminary point may be one of fact or of law, but the decision thereon must have avoided the necessity for a full hearing of the suit. Thus, where the lower court dismisses the suit as being not maintainable, or barred by limitation; or res judicata; or as disclosing no cause of action; it does so on a preliminary point of law. On the other hand, where the lower court dismisses the suit on the ground that the plaintiff is estopped from proving his case; or that it was motivated; or that the plea raised at the hearing was different from that raised in the plaint, it does so on a preliminary point of fact.

2. THE DECREE UNDER APPEAL MUST HAVE BEEN REVERSED.—

No remand can be ordered by the appellate court under this rule unless the decision of the lower court on the preliminary point is reversed in appeal. [Purapabutchi Rama v. Purapa Vimalakumari, AIR 1969 AP 216 at p. 220.] Where such is not the case, the appellate court cannot order remand simply because the judgment of the lower court is not satisfactory; or that the lower court has misconceived or misread the evidence; or has ignored the important evidence; or has acted contrary to law; or that the materials on which the conclusion is reached are scanty; and the appellate court must decide the appeal in accordance with law. [Sunder Singh v. Narain Singh, supra; Rajeshwar Rao v. Collector, Hyderabad, supra.]

3. OTHER GROUNDS.—

Rule 23-A of Order 41, as inserted by the Amendment Act of 1976, empowers the appellate court to remand a case even when the lower court has disposed of the case otherwise than on a preliminary point and the remand is considered necessary by the appellate court in the interests of justice. The primary object of Rule 23-A is to widen the powers of the appellate court to remand a case in the interests of justice. Even before the insertion of new Rule 23-A, it was held that an order of remand can be passed, if it is necessary to do so in the interests of justice. [State of T.N. v. S. Kumaraswami, AIR 1977 SC 2026; Dwarka Nath v. Ram Rati Devi, AIR 1980 SC 192.] But it was also held that the power of remand must be regulated by the provisions of Rules 23 and 25 of Order 41 and that inherent powers under Section 151 of the Code cannot be exercised by the appellate court to order remand. ▪ Mahendra Manilal v. Sushila Mahendra, AIR 1965 SC 364 at p. 399: (1964) 7 SCR 267; Nain Singh v. Koonwarjee, (1970) 1 SCC 732 at pp. 734-35: AIR 1970 SC 997 at p. 998.]

R. 26A. ORDER OF REMAND TO MENTION DATE OF NEXT HEARING—

Where the Appellate Court remands a case under rule 23 or rule 23A, or frames issues and refers them for trial under rule 25, it shall fix a date for the appearance of the parties before the Court from whose decree the appeal was preferred for the purpose of receiving the directions of that Court as to further proceedings in the suit.

EFFECT--

An order of remand reverses the decision of the lower court and reopens the case for retrial by the lower court except in regard to the matters decided by the appellate court. While remanding the case, the appellate court shall fix a date for the appearance of the parties before the lower court so as to receive its directions regarding the suit or proceeding pending in the lower court. [R. 26-A.] It thus nullifies the order passed by the trial court. It must, however be noted that when an appellate court remands a case setting aside findings of the lower court, only those findings can be said to have been set aside and not all the findings recorded by the trial court. [Mohan Lal v. Anandibai, (1971) 1 SCC 813: AIR 1971 SC 2177.]

DUTY OF TRIAL COURT----

Once an order of remand is made by a superior court, an inferior court has to decide the matter as per the direction of the superior court. In CWT v. Aluminium Corpn. Ltd. [(1973) 3 SCC 643: (1972) 1 SCR 484.]the High Court of Calcutta expressed "doubts" about the "competence" of the Supreme Court to remand the case. When the matter reached the Supreme Court again, the Apex Court observed that the High Court clearly exceeded its jurisdiction in examining the "competence" of the Apex Court to remand the case. It declared, "It would have done well to remind itself that it was bound by the orders of this Court and could not entertain or express any argument or views challenging their correctness.

APPEAL

An order passed under Rule 23 or 23-A of Order 41 is appealable.[Or. 43 R. 1(4);

POWER TO FRAME ISSUES AND REFER THEM FOR TRIAL: SECTION 107(1)(C), RULES 25 AND 26

R. 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 therefor within such time as may be fixed by the Appellate Court or extended by it from time to time.

R. 26. FINDING AND EVIDENCE TO BE PUT ON RECORD. OBJECTIONS TO FINDING—

1. Such evidence and findings shall form part of the record in the suit; and either party may within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding.

2. Determination of appeal—After the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal.

R. 26A. ORDER OF REMAND TO MENTION DATE OF NEXT HEARING—

Where the Appellate Court remands a case under rule 23 or rule 23A, or frames issues and refers them for trial under rule 25, it shall fix a date for the appearance of the parties before the Court from whose decree the appeal was preferred for the purpose of receiving the directions of that Court as to further proceedings in the suit. Where the lower court has omitted to frame any issue; or to try any issue; or to determine any question of fact, which is essential to the right decision of the suit upon merits, the appellate court may frame issues and refer them for trial to the lower court and shall direct that court to take the additional evidence required. The lower court shall try such issues and shall return the evidence and the findings within the time fixed by the appellate court.[S. 107(1)(c), Or. 41 R. 25.

EFFECT

Such evidence and findings shall form part of the record in the suit, and either party may file in the appellate court a memorandum of objections to any such finding of the lower court within a time fixed by the appellate court.[R. 26.] The appellate court should, thereafter, hear the whole appeal and the hearing should not be confined to the points on which the findings were called for.

RULES 23, 23-A AND 25: DISTINCTION

The points of distinction between Rules 23, 23-A and Rule 25 are as under:

1. While after remand under Rules 23 or 23-A, the whole case goes back for decision to the lower court (except on the point on which the appellate court has reversed the finding of the lower court), under Rule 25 the case is retained in the file of the appellate court and only issues are remitted to the lower court for trial and findings thereon.

2. An order of remand under Rules 23,23-A is a final order which cannot be reconsidered by the court which passed it except on review, while an order under Rule 25 is an interlocutory order which is open to be reconsidered by the court which has passed it.

3. Whereas an order under Rules 23, 23-A is appealable, an order under Rule 25 is not appealable.

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