SCOPE AND PROVISIONS OF REMAND UNDER CPC: A CRITICAL ANALYSIS

ABSTRACT

Remand, as understood generally, is to send back. This is especially appliable under CPC when the trial court send a case back to the trial court for re-trial. In other words, when the trial court decides a suit and disposes off the case on a preliminary point without dealing with the other issues, and on appeal, if the appellate court reverses such decree, it may send back the case to the trial court again, if satisfied that the other issues are to be decided to pass decree on the suit. Significantly, Remand plays a very important role in any case as it results in the reopening of a case by re-trial of the suit. Section 107(1)(b) of the Civil Procedure Code, 1908, entails an appellate court the power to remand a case. However, specifically the concept of remand is dealt with in Rules 23 and 23A of Order XLI under the CPC. In this respect there are certain conditions to be fulfilled for exercising the power of remand by the appellate court. This Article brings out the importance of Remand Provision, what is its significance and its scope. 

Keywords: Remand, Re-trial, Appellate Court, send back, Preliminary Points

REMAND UNDER RULE 23: CASE DISPOSED OF IN PRELIMINARY POINTS

Remand, as mentioned above, is to send back. Rule 23 of Order 41 of CPC states that where the trial court has decided a suit and given a decree, based on a ‘preliminary point’ without recording the findings on other related issues, and subsequently on appeal, the appellate court reverses the decree passed, it remands back the case to the trial court so as to decide on the other issues not decided previously to determine the final decision of the suit. However, the expression of ‘preliminary point’ must be constructed in a liberal manner and includes all issues, i.e., either of fact or of law, not just confining to legal points pleaded in a bar to suit. It is such that the determination of the point has eliminated the necessity of determining other points or issues, and has therefore left undetermined. 

The Madras High Court, in the case of Raman Nayar v. Krishna (1992) and Bai Bai v. Mahadu Maruti (1960), held that the preliminary point can be defined as “a point whether of fact or of law, whose decision avoids the necessity of a full hearing of the suit”. However, if the lower court has decided a case on merits of the whole case, then the appellate or a superior court cannot remand the case under Rule 23. Similarly, if certain findings of facts are necessary for a case to be decided and for the same, evidence is to be produced, such orders of remand given in these circumstances cannot be made under Rule 23 but must be made under Rule 25 of Order 41. 

One important condition to be fulfilled for such provision of remand is that, unless the lower court has disposed of the complete suit based on a preliminary point. This rule allows a remand to be made only where the entire suit is disposed of by the lower court on preliminary point and not when a portion of it is disposed of. Furthermore, assuming that the entire case is decided based on a preliminary point, it is important that before an order of remand is given, the appellate court must also find whether the decision made by the lower court based on the preliminary point is wrong. Besides, if the lower court decides the case based on several preliminary points, the appellate court must not remand the case until all the preliminary points are looked into and decided. 

REMAND UNDER RULE 23A: WHEN CONSIDERED NECESSARY

In addition to Rule 23 of Order 41, in the year 1976, through an amendment, Rule 23A was inserted under Order 41 through the Amending Act, 1976, stating that, “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”. In simpler terms, the rule enables the court to remand a case even when the trial court or a lower court has decided on merits or other than on the basis of a preliminary point. 

As certain conditions are present for the applicability of Rule 23, the same is not enshrined under Rule 23A. The judiciary, through Rule 23A has widened the scope of remanding a case using the phrase of “is considered necessary” by the appellate court, i.e., since there are no fixed circumstances as to when remanding of cases is necessary, but left to the discretion of the judges, it raises the issue of inherent power of remand of courts and judges. 

Furthermore, in Para. 11 of the case of Tikamdas (S/O Shukdevdas Vaishnao) v. State of Maharashtra and Anr. (2021), the Bombay High Court observed that, before Rule 23A was inserted, it was generally accepted that, “although under Rule 23, an order of remand could be made only on reversal of a decree disposing of suit on a preliminary point but, the Appellate Court has the inherent power of remanding a case where it was considered necessary to do so in the interest of justice”. This indirectly gave power to remand cases through their own discretion even though it was enshrined under the rule that the case must have been disposed of in the basis of a preliminary point. 

However, by inserting Rule 23A, this indirect power as given under Rule 23 was expressly given raising more ambiguity on remanding of cases by courts. It was noted that “insertion of Rule 23A makes it explicit that even when the suit has been disposed of otherwise than on a preliminary point and the decree is reversed in appeal, the Appellate Court shall have the power of remand, if a re-trial is considered necessary”. The same view was also held in various cases including, Para. 14 of Bharat Power T. Ltd. v. State of Goa (2018).

APPLICATION / SCOPE OF REMAND UNDER CPC

With regard to the scope of such rules, it is noted that, by the passing of the order of remand, the appellate court directs the lower / trial court to reopen the particular case. On such order from the appellate court, the trial court would re-admit the suit in the original number as noted in the register of civil suits and further proceed to try the suit under the directions of the appellate court. While Rule 23 is applicable when the trial court disposes the entire suit due to its decree on the preliminary issue without deciding the other issues, and has no applicability when the case was decided on merits, Rule 23A acts as an exception to this and allows remand for other than suit decided on preliminary point. 

Besides, a remand can also not be made barely on the grounds that an evidence was not taken while discussing certain issues in the lower court. With regard to Remand, it is mandatory for the appellate court to look into all the issues of a case unless provided otherwise. It is not permitted for the court to just consider one issue and dispose of the appeal. However, in the case where it is found that there is no issue left to be decided in material on record, or claimed that the trial court had not discussed certain evidences with reference to several issues, remand cannot be granted by the appellate court. 

Furthermore, the HC in the second appeal can intervene with the findings of the trial court and the first appellate court on ground of recording findings without proper construction of documents or when they fail to follow the orders of the apex court and acted on their own assumptions not supported by evidence. Also, in cases where an order of remand passed by an appellate court is set aside by the superior court, it does not stop the appellate court to pass another order of remand, but however, not on the issue for which the original order is set aside, but on other issues. 

Though the process of remand seems simpler, it has certain conditions to be fulfilled previous to the applicability of the rules, i.e., under Rule 23 and Rule 23A of the said order, “a remand cannot be ordered lightly but is subject to some conditions”. Firstly, to remand a case under Rule 23, the suit in question should have been disposed of by the trial court on the basis of a preliminary point. 

Though there is no fixed definition for the phrase “preliminary point” under the Code, it can be judicially determined through various cases. For instance, according to Malayath Veetil Raman v. C. Krishnan Nambudripad (1922) and Chaudhary Chandrika v. Sanubhai (1970), a point can be considered as a “preliminary point” if the decision taken based on a particular point is sufficient enough to dispose of the complete suit without the requirement of looking into the other points in the case. 

Once the order of remand is posed before the lower court, it has to go according to such orders and directions issued by the superior court. However, there were certain doubts raised as to the competence of the ‘Supreme Court’ to remand cases, wherein, in the case of CWT v. Aluminium Corpn. Ltd., the Apex Court confirmed the judicial tradition of lower courts to follow the orders of higher courts, emphasizing that the High Court has exceeded its authority in questioning he SC’s competence to remand the case. Similarly, in the case of Shantilal v. Gujarat Electricity Board, when the high Court refused to try the issue in one of the matters of a case remanded by the supreme Court, the Apex Court held that the HC was bound to do so. 

One of the major observations in remand is that, an order of remand is not sought to be passed by a superior court in a routine manner, but the party seeking such remand must show that any material evidence was ignored or mis-constructed or has some illegality involved. Additionally, if after the institution of a suit, a subsequent event takes place with regard to the same case that has the tendency to alter the relief of the case so filed, then it is necessary that firstly, the subsequent event be brought to notice of the court, secondly, it must be done using the rules of procedure as provided under CPC and hence, give the opposite party an opportunity to be heard, and thirdly, such subsequent event should have a material bearing attached to it so that the relief of the case is altered.

With regard to Rule 23A, once the decisions of a suit are looked into along with the preliminary issues, only after setting aside those findings, a remand may be ordered if necessary. In the case of Balmiki Singh v. Lalpari Devi (1981), it was pointed out by Patna High Court that, Rule 23A under Order 41 extends the ambit of power of court to remand for re-trial. Furthermore, the scope of Rule 23A was explained in the case of P. Purushottam Reddy v. Pratap Steels Ltd. (2002), where the SC held that the power of remand under this rule should be used only in deserving cases. 

It was stated that, “Rule 23A provides for remand by an appellate court against a decree if (i) the trial court disposes of the case other than on preliminary point and (ii) the decree is reversed in an appeal and a retrial is sought for consideration”. Only when the two conditions are satisfied, a remand may be made under the rule. However, it was also observed that “an unwarranted order of remand gives the litigation an undeserved lease of life, and therefore, must be avoided”. 

Furthermore, it was also understood that a remand must not be made unless it is pre-eminently necessary to do so, when circumstances such as production of additional evidence is to be produced. The Appellate court must firstly, determine whether a remand is necessary and should examine the nature of evidence to be produced. As mentioned earlier, only if such evidence has the nature of altering the final remedy of the decision as given by the trial court, the Appellate court can exercise its power under Rule 23A. For instance, as held in the case of Hasham v. Jhangi Ram (2005), if the superior court does not agree with any of the findings of the trial court, it should either reverse such findings on that particular issue, or get the report of trial court to check if the evidence was deficient on the issue. However, a direct remand for re-trial would be improper. 

Henceforth, though the provision of remand is available to higher/superior courts, it is important that the courts prevent from remanding a case unless necessary. The courts must try to dissolve the cases unless a remand is imperative. However, it is possible for an appeal arising out of the final judgement and decree, to be filed as mentioned under Order 43 of the code, to check the correctness of an order. 

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

WRITTEN BY: THANUJA ANTHIYUR ARAVINDAN 

REFERENCES

1. Order XLI, The Code of Civil Procedure, No. 5 of 1908, INDIA CODE (1908).
2. Rameshwar Singh v. Sheodin (1890) ILR 12 All 510.
3. Habib-ullah v. Lalta Prasad (1912) ILR 34 All 612: 17 IC 94.
4. Raman Nayar v. Krishna AIR 1922 Mad 505.
5. Agent, Bengal-Nagpur Rly v. Behari Lal AIR 1925 Cal 716.
6. Bai Bai v. Mahadu Maruti AIR 1960 Bom 543. 
7. CWT v. Aluminium Corpn. Ltd [1969] 71I TR 371 (CAL).
8. Shantilal v. Gujarat Electricity Board (1969) 1 SCR 580.
9. Balmiki Singh v. Lalpari Devi AIR 1981 Patna 161.
10. Kashi Nath v. Board of Revenue Uttar Pradesh AIR 2001 All 275.
11. P. Purushottam Reddy v. Pratap Steels Ltd. AIR 2002 SC 771.
12. Hasham v. Jhangi ram 2005 (1) RCR (Civil) 536.
13. Bharat Power T. Ltd. v. State of Goa 2018 SCC OnLine Bom 1296.
14. Tikamdas S/O Sukhdevdas Vaishnao vs The State Of Maharashtra (2021).