Remand Order Prolongs & Delays Litigation : Supreme Court Explains Scope Of Appellate Court's Power To Remand

An order of remand prolongs and delays the litigation, the Supreme Court observed while setting aside a High Court order remanding a case to the trial court.

In this case, the Patna High Court passed an order of remand observing that the judgment of the trial court was not written as per the mandate of Section 33 and Rule 4(2) and 5 of Order XX of the Code of Civil Procedure, as the discussion and reasoning on certain aspects was not detailed and elaborate.

Allowing the appeal against this order, the Apex Court bench of Justices Sanjiv Khanna and M M Sundresh observed that High Court overlooked the provisions of Rule 23, 23A, 24 and 25 of Order XLI of the Code.

"An order of remand prolongs and delays the 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 for reasons like lack of adequate opportunity of leading evidence to a party, where there had been no real trial of the dispute or there is no complete or effectual adjudication of the proceedings, and the party complaining has suffered material prejudice on that account. 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 court noted that it is not a case where the evidence is not adduced and on record and that the the judgment of the High Court elaborately records the contention of the parties and the facts and evidence relied by the parties.

The court therefore restored the first appeal before the High Court.

Case details

Arvind Kumar Jaiswal (D) vs Devendra Prasad Jaiswal Varun | 2023 LiveLaw (SC) 112 | SLP(C) 9172/2020 | 13 Feb 2023 | Justices Sanjiv Khanna and M M Sundresh

For Petitioner(s) M/S. Ranjan And Company, AOR Mr. Nadeem Hussain, Adv. Ms. Kumari Bandana, Adv.

For Respondent(s) Mr. S. R. Singh, Sr. Adv. Mr. Anurag Singh, Adv. Mr. Anil Kumar Mishra, AOR Mr. Gaurav Lomes, Adv. Mr. Ajay Yadav, Adv

Headnotes

Code of Civil Procedure, 1908 ;  Order XLI Rule 23, 23A, 24 and 25 - Remand -  An order of remand prolongs and delays the 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 for reasons like lack of adequate opportunity of leading evidence to a party, where there had been no real trial of the dispute or there is no complete or effectual adjudication of the proceedings, and the party complaining has suffered material prejudice on that account. 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. 

Code of Civil Procedure, 1908 ; Section 33, Order XX Rule 4(2), 5 ; Order XLI Rule 23, 23A, 24 and 25 - Remand - High Court passed order of remand observing that the judgment of the trial court was not written as per the mandate of Section 33 and Rule 4(2) and 5 of Order XX of the Code, as the discussion and reasoning on certain aspects was not detailed and elaborate - Allowing appeal, the Supreme Court observed: 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 - First appeal restored before High Court.

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