Order 41 rule 23a
Rastogi
(Querist) 29 December 2015
This query is : Resolved
Can Highcourt remand cases under rule23A to allow appellant to produce additional evidence.
Both Trial court and In first appeal the suit is decreed in our Client favour.
I understand the Rule 23A can be invoked only in cases where case is decided other than on preliminary points and the same is reversed in appeal.
In our cases all the issues are properly framed and decided on merits. Even in first appeal, the reason for not allowing additional evidence as per rule 27 is also given in judegment.
Devajyoti Barman
(Expert) 29 December 2015
first inform what happened than asking academic query.
Rastogi
(Querist) 29 December 2015
The suit was for declaration and permanent injunction. The suit was decreed in trial court and the appeal was dismissed.
During the appeal application was filed under rule 27 for producing additional evidence which was not allowed by appellate court since it did not meet the conditions specified in rule 27.
Suit is between 2 brothers. The suit was filed for more share since the other brother has agreed for extra share initially by taking the same property on mortgage. Based on Mortgage deed suit was decreed for more share.
The contention of the appellant is the share of the property is equal.
SAINATH DEVALLA
(Expert) 30 December 2015
GO THROUGH THE BELOW MENTIONED CITATION
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 7 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.
Rastogi
(Querist) 30 December 2015
Want to know power of High court to remand cases? Can it remand to produce additional evidence
Rastogi
(Querist) 30 December 2015
Want to know power of High court to remand cases? Can it remand to produce additional evidence
Devajyoti Barman
(Expert) 01 January 2016
Yes, in appeal if the appellate court allows additional evidence under order 41 rule 27 CPC then the appeal court can either record the additional evidence itself or remand the matter to trial court for this limited purpose.
Rajendra K Goyal
(Expert) 05 January 2016
Agree with the expert Devajyoti Barman.
