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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     Nos.     3347-3348     OF     2012   ARISING     OUT     OF   

Special     Leave     to     Appeal     (Civil)     No(s).19439-19440/2010   

JEGANNATHAN                            APPELLANT

                VERSUS

RAJU SIGAMANI & ANR.                   RESPONDENTS  

JUDGMENT R.M.     LODHA,     J.   

Delay condoned.

Leave granted.

The appellant herein is plaintiff No. 2. He, along  

with two others, namely, Gnanasoundari and George filed  

a Suit against the present respondent   No.1 for  

declaration, permanent injunction and mandatory  

injunction.

The respondent No. 1 contested the Suit on diverse  

grounds.

After recording evidence and on hearing the  

parties, the trial Court on September 16, 1999 decreed  

plaintiffs' Suit for the grant of permanent injunction.

Aggrieved by the judgment and decree dated  

September 16, 1999, the respondent No.1 preferred first  

appeal which came up for hearing before the Subordinate

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Judge, Tiruchirapalli. On hearing the parties, the  

first appellate Court, allowed the appeal, set aside  

the judgment of the trial Court and remanded the Suit  

back to the trial Court with a direction to give an  

opportunity to both the parties to let in evidence –

oral and documentary— and then decide the Suit afresh  

on merits.

The order of remand dated April 8, 2002 was  

challenged by the present appellant and present  

respondent No. 2 by filing a Miscellaneous Appeal  

before the High Court under Order 43 Rule 1(u) of the  

Code of Civil Procedure, 1908 (for short 'the Code').

The High Court, by its order dated 26th September,  

2008, held that the Civil Miscellaneous Appeal was not  

maintainable and dismissed the appeal on that ground.

The appellant and the respondent No. 2 then filed  

a petition before the High Court seeking review of the  

order dated September 26, 2008. However, the Review  

Petition was also dismissed on November 12, 2009. It is  

from these two orders that the present appeal has  

arisen.

Order 41 of the Code provides for appeals from  

original decrees. The Code empowers the appellate Court  

to order remand in three situations. These three  

situations are covered by Order 41 Rule 23, Order 41

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Rule 23A and Order 41 Rule 25 which read 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.

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  there for within such time as may be fixed by

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the Appellate Court or extended by it from  time to time. Order 41 Rule 23 is invocable by the appellate  

Court where the appeal has arisen from the decree  

passed on a preliminary point. In other words, where  

the entire suit has been disposed of by the trial Court  

on a preliminary point and such decree is reversed in  

appeal and the appellate Court thinks proper to remand  

the case for fresh disposal. While doing so, the  

appellate Court may issue further direction for trial  

of certain issues.

Order 41 Rule 23A has been inserted in the Code  

by Act No. 104 of 1976 w.e.f. February 1, 1977.  

According to Order 41 Rule 23A of the Code, the  

appellate Court may remand the suit to the trial Court  

even though such suit has been disposed of on merits.  

It provides that where the trial Court has disposed of  

the Suit on merits and the decree is reversed in appeal  

and the appellate Court considers that retrial is  

necessary, the appellate Court may remand the suit to  

the trial Court.

Insofar as Order 41 Rule 25 of the Code is  

concerned, the appellate Court continues to be in  

seisin of the matter; it calls upon the trial Court to  

record the finding on some issue or issues and send  

that finding to the appellate Court. The power under

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Order 41 Rule 25 is invoked by the appellate Court  

where it holds that the trial Court that passed the  

decree omitted to frame or try any issue or determine  

any question of fact essential to decide the matter  

finally. The appellate Court while remitting some issue  

or issues, may direct the trial Court to take  

additional evidence on such issue/s.

Insofar as the present case is concerned, the  

trial Court had disposed of the suit on merits and not  

on a preliminary issue. The first appellate Court set  

aside the judgment and decree of the trial Court and  

directed the trial Court to decide the suit afresh  

after giving parties an opportunity to lead evidence —  

oral as well as documentary. The nature of the order  

passed by the appellate Court leaves no manner of doubt  

that such order has been passed by the appellate Court  

in exercise of its power under Order 41 Rule 23A of the  

Code.

Order 43 of the Code provides for appeals from  

orders. Clause (u) of Rule 1 Order 43 was amended  

consequent upon insertion of Rule 23A in Order 41  

w.e.f. February 1, 1977. It reads as under:

An appeal shall lie from the following  orders under the provisions of Section 104,  namely:—

x x x x x

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(u) an order under rule 23 or rule 23A of  Order XLI remanding a case, where an appeal  would lie from the decree of the Appellate  Court;

x x x x x  It is clear from the above provision that 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.

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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.

.............................J.      (R.M. LODHA)

.............................J.          (H.L. GOKHALE)          

NEW DELHI, 02-04-2012