Appellate Court May Remand A Case Back Only Where Trial Court Skips Finding On Certain Issue Or Decides Suit Only On Preliminary Issue: Bombay HC

Bench of Justice Sandipkumar C. More sitting at Aurangabad added that no remand can be made if the trial Court has decided the suit by considering the entire evidence on record and when the appellate Court, in view of the said material, is able to reassess the evidence to ascertain whether the findings given by the trial Court are sustainable or not.

The observation was given while hearing an appeal against an order of Principal District Judge passed at appellate stage, remanding two civil suits relating to declaration of nature of a property, viz. self-acquired property or joint family property, back to the lower court.

One suit was filed by Pralhad against his father Sitaram for claiming partition and separate possession in respect of the suit property (said to be joint family property).

Another suit was filed by Sunil and Jitendra against their father Pralhad, for declaring them as owners of the same suit property since it was allegedly bequeathed to them by Sitaram (said to be Sitaram's self-acquired property).

The concerned trial courts had decided both the civil suits on their own merits and by giving full opportunity to the parties concerned of leading the evidence.

In appeal, the Principal District Judge passed a common order and thereby remanded the concerned civil suits to the court of Civil Judge (Senior Division) for deciding the same afresh, after consolidation, considering the object of Section 10 CPC (res judicata).

This order came to be challenged in instant appeal.

The Respondents defended this decision by arguing that since Sunil and Jitendra were not party to the suit filed by their father and since a common question was involved in respect of the nature of suit property in both the suits, the trial Courts ought to have consolidated both the suits together for disposal by common judgment.

The Appellants on the other hand submitted that the vital issue in both the suits in respect of the nature of suit property was decided on merit in both the suits.

Agreeing with the Appellant, the High Court observed that when the Appellate Court i.e. the Principal District Judge was seized of both the appeals arising out of the suits which were decided on merit, it could have disposed of the appeals on merit instead of remanding the same back to the concerned trial Court.

"It was not the case that the concerned trial Courts had left out certain issue to be decided or skipped certain material evidence or had decided the suits only on preliminary issue…The judgments of the trial Courts in those suits clearly indicate that the trial Courts have framed necessary issues and given clear-cut findings on each issue based on the evidence on record."

It observed that lower Court did not construe the object of Section 10 CPC in proper perspective

"The stage of Section 10 of the C.P.C. is not property considered by the learned lower Court since the consolidation, as ordered by the lower court, could have been done at the trial stage only and not after the trial, when the concerned trial Courts had decided both the suits on merits and by considering the evidence on record in each suit."

Case Title: Pandurang Sitaram Choudhari (Borse) & Ors. v. Sunil Pralhad Choudhari & Ors.

Citation: 2022 LiveLaw (Bom) 386 

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