JUGAL KISHORE SINGH vs KRISHNA KANT
- Court
- Jharkhand High Court
2026:JHHC:31609
IN THE HIGH COURT OF JHARKHAND, RANCHI
M.A. No. 403 of 2023
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Jugal Kishore, aged about 80 years, son of Late Deoki Nandan
Singh, resident of village – Narottampur, PO – Kajra, PS –
Suryagarha, District – Lakhisarai Old, District – Munger, at present
residing at Mohalla Chak Hanumantikri, PO, PS, Sub-division and
District - Deoghar .... Appellant
-- Versus --
Krishna Kant, son of Prabhavati and Ramji Singh, resident of village –
Majhol, PO – Dhoria, PS – Dhoria, Bariyarpur, District – Begusarai
(Bihar), presently residing at Mohalla Hanumantikri, PO, PS, Sub-
division and District - Deoghar .... Respondent
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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant :- Mr. Atanu Banarjee, Advocate
:- Mr. Abhay Shankar, Advocate
:- Mr. Aditya Banerjee, Advocate
:- Shezal Gupta, Advocate
For the Respondent :- Mr. Rupesh Singh, Advocate
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05 /28.10.2026 Heard Mr. Atanu Banarjee, learned counsel appearing for the
appellant and Mr. Rupesh Singh, learned counsel appearing for the sole
respondent.
2. This appeal has been preferred under Order 43 Rule I(u) of the
Code of Civil Procedure, 1908 challenging the judgment dated
23.08.2023 and decree signed on 31.08.2023 passed by learned District
Judge-II, Deoghar passed in Title Appeal No.13 of 2005 whereby the
learned District Judge-II, Deoghar has been pleased to set aside the
judgment dated 08.06.2005 and decree sealed and signed on 20.06.2005
passed in Title (Ev.) Suit No.13 of 1993 passed by learned Civil Judge (Sr.
Div.-II), Deoghar and remanded back the case to the learned Court to
proceed as per law and has been pleased to allow the appeal being Title
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Appeal No.13 of 2005.
3. Mr. Atanu Banerjee, learned counsel appearing for the appellant
submits that the learned trial court, after scrutinizing the oral and
documentary evidence, arrived at a categorical finding of fact that the
land covered under the defendant’s title deed (Exhibit – J/4) is distinct,
separate and different from the suit property described in Schedule-A. He
further submits that the learned appellate court in the impugned
judgment did not even touch upon, analyze, or reverse this core finding
regarding the identity of the land and instead of demonstrating how the
trial court’s analysis of the deeds was erroneous, the appellate court
merely made a generalized, sweeping observation that the trial court had
“cherry picked lines from the evidence”. He then submits that the learned
trial court’s judgment dated 08.06.2005 was passed after a full trial
where numerous witnesses were examined. He next submits the learned
appellate court himself was competent to decide the appeal, however, he
has remanded the title suit to the learned trial court to decide afresh
which is not in consonance with the law regarding the remand and the
provisions laid under Order 41 Rule 23, 23(A), 24 and 25 have not been
followed. By way of referring Rule 23, Mr. Banerjee, learned counsel
appearing for the appellant submits that the manner of remand is
stipulated therein and submits that upon a preliminary point if the
learned appellate court finding that the judgment of learned trial court is
perverse then the remand can be made in light of Rule 23. He next
submits that in light of Rule 23(A) the remand in other cases is
prescribed therein and if on a preliminary point the decree reversed by
the appellate court then retrial is considered necessary and the remand
order can be passed. By way of making emphasis upon Rule 24 of Order
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41, he submits that evidence on record is sufficient and appellate court is
competent to decide the appeal. By way of referring Rule 25 of order 41
CPC, he submits that option was also there upon the learned appellate
court to frame the issue and send the said particular reference to the
learned trial court and after having the answer the learned appellate
court was competent to decide the same. He next submits that however
the learned appellate court without following these aspects has
erroneously remanded the matter after setting aside the judgment and
decree passed by the learned trial court. He has gone to extent in
arguing by way of referring paragraph No.5.1 and submits that the
heading has been made by the learned appellate court of points of
determination, however, in that paragraph there is no point framed. He
next submits that learned first appellate court by way of making the chart
of the property and exhibits have concluded about the property which
sale deed or property was leased on. He next submits that the learned
appellate court only on the ground that the number of witness and
documentary evidences are voluminous and unnecessary evidences have
been allowed by the learned trial court without its control on the record
and held that “there are cherry picked lines from the evidences” and the
documentary evidence has not been elaborately discussed and remanded
the matter after setting aside the judgment and decree which is not in
accordance with law. He next submits that this Court is only testing the
remand order under Order 41 rule 23(A), as such this Court is also not
required to go into the merit of the case. According to him, the only test
has to be done that as to whether the remand order is correct or not.
4. Mr. Banerjee, learned counsel appearing for the appellant relied
in the judgment of Hon’ble Supreme Court in the case of Murthy and
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Others versus C. Saradambal and Others reported in (2022) 3
SCC 209 wherein at paragraph No.60 it has been held as under :-
60. Before parting with this case, we would like to reiterate that in this
case, the High Court has dealt with the judgment of the learned Trial
Judge in a short cut method, bereft of all reasoning while reversing the
judgment of the Trial Court both on facts as well as law. It is trite that
the Appellate Court has jurisdiction to reverse, affirm or modify the
findings and the judgment of the Trial Court. However, while reversing or
modifying the judgment of a Trial Court, it is the duty of the Appellate
Court to reflect in its judgment, conscious application of mind on the
findings recorded supported by reasons, on all issues dealt with, as well
as the contentions put forth, and pressed by the parties for decision of
the Appellate Court. No doubt, when the Appellate Court affirms the
judgment of a Trial Court, the reasoning need not to be elaborate
although reappreciation of the evidence and reconsideration of the
judgment of the Trial Court are necessary concomitants. But while
reversing a judgment of a Trial Court, the Appellate Court must be more
conscious of its duty in assigning the reasons for doing so.
5. Relying on the above judgment, Mr. Banerjee, learned counsel
appearing for the appellant submits that reasoning given by the learned
trial court has not been answered by the learned first appellate court and
in view of that also the remand order is bad when the learned first
appellate court himself was competent to decide the appeal as all
materials were there in the form of trial court record.
6. Mr. Banerjee, learned counsel appearing for the appellant further
relied in the case of P. Purushottam Reddy and Another verus
Pratap Steels Ltd. reported in (2002) 2 SCC 686 wherein at
paragraph No.10 it has been held as under :-
10. The next question to be examined is the legality and propriety of the
order of remand made by the High Court. Prior to the insertion of Rule
23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act
1976, there were only two provisions contemplating remand by a court
of appeal in Order 41 of CPC . Rule 23 applies when the trial court
disposes of the entire suit by recording its findings on a preliminary issue
without deciding other issues and the finding on preliminary issue is
reversed in appeal. Rule 25 applies when the appellate court notices an
omission on the part of the trial court to frame or try any issue or to
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determine any question of fact which in the opinion of the appellate
court was essential to the right decision of the suit upon the merits.
However, the remand contemplated by Rule 25 is a limited remand in as
much as the subordinate court can try only such issues as are referred to
it for trial and having done so the evidence recorded together with
findings and reasons therefore of the trial court, are required to be
returned to the appellate court. However, still it was a settled position of
law before 1976 Amendment that the court, in an appropriate case could
exercise its inherent jurisdiction under Section 151 of the CPC to order a
remand it such a remand was considered pre-eminently necessary ex
debito justitiae, though not covered by any specific provision of Order 11
of the CPC . In cases where additional evidence is required to be taken in
the event of any one of the clause of Sub-rule (1) of Rule 27 being
attracted such additional evidence oral or documentary, is allowed to be
produced either before the appellate court itself or by directing any court
subordinate to the appellate court to receive such evidence and send it
to the appellate court. In 1976, Rule 23A has been inserted in Order 41
which provides for a remand by an appellate court hearing an appeal
against a decree if (i) the trial court disposed of the case otherwise than
on a preliminary point, and (ii) the decree is reversed in appeal and a
retrial is considered necessary. On twin conditions being satisfied, the
appellate court can exercise the same power of remand under Rule 23A
as it is under Rule 23. After the amendment all the cases of wholesale
remand are covered by Rule 23 and 23A. In view of the express
provisions of these rules, the High Court cannot have recourse to its
inherent powers to make a remand because as held in Mahendra v.
Sushila (AIR 1965 SC 365 at p. 399), it is well settled that inherent
powers can be availed of ex debito justitiae only in the absence of
express provisions in the Code. It is only in exceptional cases where the
court may now exercise the power of remand de hors the Rules 23 and
23A. To wit the superior court, if it finds that the judgment under appeal
has not disposed of the case satisfactorily in the manner required by
Order 20 Rule 3 or Order 11 Rule 31 of the CPC and hence it is no
judgment in the eye of law, it may set aside the same and send the
matter back for re-writing the judgment so as to protect valuable rights
of the parties. An appellate court should be circumspect in ordering a
remand when the case is not covered either by Rule 23 or Rule 23A or
Rule 25 of the CPC . An unwarranted order of remand gives the litigation
an undeserved lease of life and, therefore must be avoided.
7. Relying on the above judgment, Mr. Banerjee, learned counsel
appearing for the appellant submits that it is only in exceptional cases
where the Court may exercise the power of remand and in a routine
manner remand is not expected.
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8. Mr. Banerjee, learned counsel appearing for the appellant also
relied in the judgment of Madras High Court in the case of Guruvammal
and Another Vs. Chinnamuniyandi and Another reported in 2014
(3) MWN (Civil) 125 wherein at paragraph No.7(iii) it has been held as
under :-
7. Before testing the correctness of the order of remand passed by the
first appellate court which is the issue involved in the appeal, I would like
to consider the judgments of the Hon'ble Supreme Court and this Court
in this regard.
(iii) In Subbiah Konar and three others vs. State of Tamilnadu
through District Collector, Tirunelveli and other reported in 2003 (3) MLJ
524, this Court in paragraph 14 has held as follows :
"14. It is well settled that remand is not meant to give
another chance to the parties to fill up the lacuna or to
substantiate what the plaintiffs or defendants have failed to
prove or establish. Remand is also not permissible to fill up the
lacuna or to enable the parties to let in fresh evidence when the
very plaintiffs who come forward with the suit have failed to
establish their case."
9. Relying on the above judgment, Mr. Banerjee, learned counsel
appearing for the appellant submits that the remand cannot be in garb of
another chance to the parties to fill up the lacuna.
10. In the aforesaid background, Mr. Banerjee, learned counsel
appearing for the appellant submits that the judgment may kindly be set
aside and the Title Appeal No.13 of 2005 may kindly be restored to the
file of learned first appellate court to decide the same on merit.
11. On the other hand, Mr. Rupesh Singh, learned counsel appearing
for the sole respondent opposes the prayer and submits that this
litigation is since the year 1993 and both the sides have travelled twice
before this Court in Civil Revision and Writ Petition and Civil Revision was
filed by the appellant herein and the pleading was allowed to be
amended before the learned trial court and direction was issued to decide
the said suit. He further submits that after amendment was allowed the
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dependents have moved before this court in Writ Petition which was
subsequently dismissed by this court and thereafter the suit has been
decided. According to Mr. Singh, learned appellate court has found
infirmities with the pleadings and in view of that he has rightly remanded
the Title (Ev.) Suit No.13 of 1993 to decide afresh. He then submits that
the learned appellate court finding the infirmities has rightly remanded
the matter. He next submits that in absence of pleading evidence has
been laid and in view of that learned first appellate court has rightly
remanded the title suit to decide afresh. On these grounds, he submits
that the appeal may kindly be dismissed.
12. In view of the above submission of learned counsel appearing
for the parties and after going through the judgments of learned trial
court as well as learned first appellate court, it transpires that the learned
trial court by the judgment dated 08.06.2005 has been pleased to decree
the suit in favour of the appellant/plaintiff herein. The learned trial court
has elaborately dealt with the pleadings and the evidences oral as well as
documentary and thereafter has been pleased to decree the suit.
13. On perusal of the judgment of learned first appellate court, the
Court finds that the learned appellate court at paragraph No.5.1 made
the points for determination, however, what point has been framed to
decide the appeal that is not disclosed in the said paragraph. The basis of
coming to the boundaries of the sale deed and of actual ground reality
the clear-cut finding is also not there in the judgment of the learned first
appellate court.
14. Learned first appellate court has held that the number of
witnesses and documentary evidences are voluminous and unnecessary
evidences have been allowed by the learned trial court without its control
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on the record and there are cherry picked lines from the evidences and
neither of the documentary evidences have been elaborately discussed
and only to dispose of the matter the learned trial court has passed the
judgment which appears to be error in light of the judgment of learned
trial court itself as the learned trial court’s judgment is a reasoned order
and when the materials are there the learned first appellate court himself
is competent to decide the appeal on merit after framing the point and
met out the reasons provided by the learned trial court in the judgment,
however, learned first appellate court has not done so.
15. Rule 23, 23(A), 24 and 25 of Order 41 of the CPC stipulates as
under :-
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.
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 retrial is
considered necessary, the Appellate Court shall have the same powers as
it has under rule 23.
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.
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
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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.]
16. In light of Rule 24, the evidence upon the record is itself
sufficient to enable the appellate court to determine the case finally and
Rule 25 further stipulates that the learned appellate court was
empowered to frame the issue and send the said issue to the learned
trial court and record the evidence and by appreciating the said evidence,
the learned appellate court can give the findings and these aspects have
not been taken care of by the learned first appellate court.
17. The issue in question was the subject matter before the Hon’ble
Supreme Court in the case of J. Balaji Singh versus Diwakar Cole
and Ors. reported in (2017) 14 SCC 207 wherein at paragraph
Nos.14 to 17 it has been held as under :-
14. There are three provisions in the Code which deal with the power of
the Appellate Court to remand the case to the Trial Court. These
provisions are Order 41 Rules 23, 23-A, and 25.
14.1. So far as Order 41 Rule 23 is concerned, it enables
the Appellate Court to remand the case to the Trial Court when it
finds that the Trial Court has disposed of the suit upon a
preliminary point. The Appellate Court in such cases is
empowered to direct the Trial Court to decide all the issues on
evidence on record.
14.2. So far as Rule 23-A is concerned, it enables the
Appellate Court to remand the case to the Trial Court when it
finds that though the Trial Court has disposed of the suit on all
the issues but on reversal of the decree in appeal, a re-trial is
considered necessary by the Appellate Court.
14.3. So far as Rule 25 is concerned, it enables the
Appellate Court to frame or try the issue if it finds that it is
essential to the right decision of the suit and was not framed by
the Trial Court. The Appellate Court in such case may,
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accordingly, frame the issues and refer the same to the Trial
Court to take the evidence and record the findings on such issues
and return to the Appellate Court for deciding the appeal. In such
cases, the Appellate Court retains the appeal to itself.
15. Now coming to the facts of the case, we are of the considered
opinion that once the first Appellate Court allowed the application under
Order 41 Rule 27 of Code and took on record the additional evidence, it
rightly set aside the judgment/decree of the Trial Court giving liberty to
the parties to lead additional evidence in support of their case which, in
turn, enabled the Trial Court to decide the civil suit afresh on merits in
the light of entire evidence. The first Appellate Court was, therefore,
justified in taking recourse to powers conferred on the Appellate Court
under Order 41 Rule 23-A for remanding the case to the Trial Court. We
find no fault in exercise of such power by the first Appellate Court.
16. In our considered view, the only error which the first Appellate Court
committed was that it went on to record the findings on merits. In our
view, it was not necessary to do so while passing the order of remand.
The reason is that once the first Appellate Court formed an opinion to
remand the case, it was required to give reasons in support of the
remand order as to why the remand is called for in the case. Indeed, the
remand was made only to enable the Trial Court to decide the case on
merits. Therefore, there was no need to discuss much less record
findings on several issues on merits. It was totally uncalled for.
17. So far as the impugned order is concerned, the High Court, in our
view, committed jurisdictional error when it also again examined the
case on merits and set aside the judgment of the first Appellate Court
and restored the judgment of the Trial Court. The High Court, in our
opinion, should not have done this for the simple reason that it was only
examining the legality of the remand order in an appeal filed under
Order 43 Rule 1(u) of the Code. Indeed, once the High Court came to a
conclusion that the remand order was bad in law then it could only
remand the case to the first Appellate Court with a direction to decide
the first appeal on merits.
18. The cogent reading of Rules 23, 23A and 24 of Order 41 clearly
suggests that when the available evidence is sufficient to dispose of the
matter the proper course of an appellate court is to follow the mandate
of Rule 24 of Order 41 of CPC and determine the suit finally only in such
cases where the decree in challenge reverse in appeal and retrial is
considered necessary that the appellate court shall above the courts of
remanding the case. It is well settled that the order of remand is not to
be passed in a routine manner as an unwarranted order of remand
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enlarge the life of litigation without serving the cause of justice. This
aspect has been further answered by Hon’ble Supreme Court in the case
of Shivakumar and Ors. versus Sharanabasappa and Ors.
reported in (2021) 11 SCC 277.
19. The aforesaid aspects and when the case of remand will arise
that has also been answered in the judgments relied by Mr. Banerjee in
the cases of Murthy and Others versus C. Saradambal and Others
(supra), P. Purushottam Reddy and Another verus Pratap Steels
Ltd. (supra) and Guruvammal and Another Vs. Chinnamuniyandi
and Another (supra).
20. In view of above facts, circumstance, reasons and analysis the
Court finds that the remand order passed by learned first appellate court
is not in accordance with law as such judgment dated 23.08.2023 and
decree signed on 31.08.2023 passed by learned District Judge-II,
Deoghar is hereby set aside and Title Appeal No.13 of 2005 is restored to
the file of learned first appellate court for fresh consideration in light of
judgments of Hon’ble Supreme Court cited (supra). In the result, this
Miscellaneous Appeal is allowed and disposed of.
(Sanjay Kumar Dwivedi, J.)
Dated 28.10.2026
Sangam/
A.F.R.
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