Remand order 41 rule 23, 25
Querist :
Anonymous
(Querist) 02 February 2012
This query is : Resolved
whether it is neccessary to hear party before passing order regarding REMAND THE MATTER BACK TO SUBORDINATE AUTHORITY TO REDICEDE THE MATTER ON PARTICULAR ISSUE UNDER OREDER 41 RULE 23, 25 BY THE APPEALLATE AUTHORITY ?
Nadeem Qureshi
(Expert) 02 February 2012
Dear Querist
according to Order 41 Rule 23 read as below
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.
HIGH COURT AMENDMENTS
Allahabad.-In Order XLI, in rule 23,-
(a) after the words "and the decree is reversed in appeal", insert the words "or where the Appellate Court while reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case, it".
(b) omit the words "the Appellate Court" occurring thereafter and omit also the words "if it thinks fit", occurring after the word "may", (w.e.f. 1-6-1957)
Andhra Pradesh.-Same as in Madras.
Karnataka.-In Order XLI, for rule 23, substitute the following rule, namely:-
"23. 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, or where the Appellate Court in reversing or .setting aside the decree under appeal considers it necessary in the interests of Justice to remand the case, the Appellate Court may by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded and whether any further evidence shall or shall not be taken after remand, and shall send a copy of its judgment or order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of 'civil suits, and proceed to determine the suit; the evidence, if any, recorded during the original trial shall subject to all just exceptions, be evidence during the trial after remand." (w.e.f. 5-11-1959)
Kerala.-Same as in Madras, (w.e.f. 9-6-1959)
Madras.-In Order XLI, in rule 23,-
(a) after the words "the decree is reversed in appeal", insert the words "or where the Appellate Court, in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case"; and
(b) omit the words "if it thinks fit," occurring after the words "the Appellate Court may".
Rajasthan.-In Order XLI, for rule 23, substitute the following rule, namely:-
"23. Remand of case by Appellate Court.-Where the Court from whose decree an appeal is preferred has disposed of the suit on a preliminary point and the decree is reversed in appeal, or where the Appellate Court while reversing or setting aside the decree under appeal, considers it necessary in the interests of justice to remand the case, it may 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, with direction 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." (w.e.f. 11-3-1965)
1[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 re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.]
1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).
Nadeem Qureshi
(Expert) 02 February 2012
and
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 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 1[within such time as may be fixed by the Appellate Court or extended by it from time to time.]
Raj Kumar Makkad
(Expert) 02 February 2012
#Nadeem! You are not required to make violation of majority decision not to reply anonymous queries. I hope you shall voluntarily follow it.
Raj Kumar Makkad
(Expert) 02 February 2012
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Shailesh Kr. Shah
(Expert) 03 February 2012
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