# Prakash Narain & Ors v. Hari Bux Singh & Ors

- **Citation:** (2025) 2 ILRA 9
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-17
- **Case number:** First Appeal From Order No. 32 of 2022
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prakash-narain-ors-v-hari-bux-singh-ors-53032
- **Pages:** 16

## Headnote

Civil Law-The Code of Civil Procedure,
1908-Sections 96, 100 & 107 - Order 41 -
Rule 17, 23, 23-A, 25 & Order 43 Rule (1)
(u))-Appeal under Order XLIII Rule 1(U)
against the remand order passed by the
Appellate Court---If particular issue of limitation
was not framed by the trial court as recorded by
the lower appellate court and on the basis of
record the trial court has recorded a finding
which shows the suit is not time barred, it could
have considered the same and recorded a
finding thereon, if the evidence is sufficient by
framing a issue, if required as first appeal is in
continuation of the suit and appellate court has
all the powers for considering suit on facts as
well as law---Admittedly the commission report
is on record, but no objection to the same has
been filed by the defendant-respondents and no
finding has been recorded by the trial court that
it is not satisfied with the proceedings and the
report of commissioner, therefore, it stands final
and if it has not been considered by the trial
court and the lower appellate court was of the
view that it was required to be considered, it
could have considered the same and upon
considering it an independent finding could have
been recorded and after it if the appellate court
was of the view that the matter is required to be
remanded, it could have remanded recording
specific findings as remand on technical ground
without affecting merit is not tenable.(Para 36
& 40)

The impugned order was passed without dealing
with the case as an appellate court under
Section 96 of C.P.C. and exercising the powers
10 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 107 of C.P.C. read with Order-41,
Rules-23, 23-A and 25 and passing judgment
without complying with the provision of under
Order 41 Rule 31 of C.P.C., therefore, the
impugned judgment and order passed by the
lower appellate court is liable to be set aside
and the matter is liable to be remanded to the
lower appellate court to consider and decide the
appeal afresh in accordance with law and the
observations made herein-above in this order.
(E-15)
(Para 41)

List of Cases cited:

## Text

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2 All. Prakash Narain & Ors. Vs. Hari Bux Singh & Ors.
9
submissions made by learned counsel for
the parties, the evidence on record, and
without expressing any opinion on the
merits of the case, the Court is of the view
that the applicant has made out a case for
bail. The bail application is allowed.

39. Let the applicant- Saurabh Meena
involved in aforementioned case crime
number be released on bail on furnishing a
personal bond and two sureties each in the
like amount to the satisfaction of the court
concerned subject to following conditions.

(i) The applicant shall not tamper
with evidence.

(ii) The applicant shall remain
present, in person, before the Trial Court on
dates fixed for (1) opening of the case, (2)
framing of charge and (3) recording of
statement under Section 313 Cr.P.C/351
B.N.S.S. If in the opinion of the Trial Court
absence of the applicant is deliberate or
without sufficient cause, then it shall be
open for the Trial Court to treat such
default as abuse of liberty of bail and
proceed against him in accordance with
law.

40. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail. Identity, status and
residence proof of the applicant and
sureties be verified by the court concerned
before the bonds are accepted.

41. It is made clear that observations
made in granting bail to the applicant shall
not in any way affect the learned trial Judge
in forming his independent opinion based
on the testimony of the witnesses.
----------
(2025) 2 ILRA 9
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.02.2025
BEFORE

THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order No. 32 of 2022

Prakash Narain & Ors. ...Appellants
Versus
Hari Bux Singh & Ors. ...Respondents

Counsel for the Appellants:
Ankit Pande

Counsel for the Respondents:
Onkar Nath Pandey

Civil Law-The Code of Civil Procedure,
1908-Sections 96, 100 & 107 - Order 41 -
Rule 17, 23, 23-A, 25 & Order 43 Rule (1)
(u))-Appeal under Order XLIII Rule 1(U)
against the remand order passed by the
Appellate Court---If particular issue of limitation
was not framed by the trial court as recorded by
the lower appellate court and on the basis of
record the trial court has recorded a finding
which shows the suit is not time barred, it could
have considered the same and recorded a
finding thereon, if the evidence is sufficient by
framing a issue, if required as first appeal is in
continuation of the suit and appellate court has
all the powers for considering suit on facts as
well as law---Admittedly the commission report
is on record, but no objection to the same has
been filed by the defendant-respondents and no
finding has been recorded by the trial court that
it is not satisfied with the proceedings and the
report of commissioner, therefore, it stands final
and if it has not been considered by the trial
court and the lower appellate court was of the
view that it was required to be considered, it
could have considered the same and upon
considering it an independent finding could have
been recorded and after it if the appellate court
was of the view that the matter is required to be
remanded, it could have remanded recording
specific findings as remand on technical ground
without affecting merit is not tenable.(Para 36
& 40)

The impugned order was passed without dealing
with the case as an appellate court under
Section 96 of C.P.C. and exercising the powers
10 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 107 of C.P.C. read with Order-41,
Rules-23, 23-A and 25 and passing judgment
without complying with the provision of under
Order 41 Rule 31 of C.P.C., therefore, the
impugned judgment and order passed by the
lower appellate court is liable to be set aside
and the matter is liable to be remanded to the
lower appellate court to consider and decide the
appeal afresh in accordance with law and the
observations made herein-above in this order.
(E-15)
(Para 41)

List of Cases cited:

1. Abdur Rahman & ors.Vs Athifa Begum & ors.;
(1996) 9 SCC 62

2. Janki Prasad Vs Sanjay Kumar & ors.; 2022
(1) ADJ 312 (LB)

3. Narayanan Vs Kumaran & ors.; (2004) 4 SCC 26

4. Vasant Ganesh Damle Vs Shrikant Trimbak
Datar & anr.; (2002) 4 SCC 183

5. Malluru Mallappa (dead) through legal
representatives Vs Kuruvathappa & ors.; (2020)
4 Supreme Court Cases 313

6. Syeda Rahimunnisa Vs Malan BI (Dead) by
L.Rs. & anr.; 2016 (119) ALR 485

7. Jagannathan Vs Raju Sigamani & anr.; (2012)
5 SCC 540

8. P. Purushottam Reddy & anr. Vs Pratap Steels
Ltd.; (2002) 2 SCC 686

9. Maya Devi (Dead) through LRs Vs Raj Kumari
Batra (Dead); (2010) 9 SCC 486

10. Sathyanath & anr. Vs Sarojamani; (2022) 7
Supreme Court Cases 644

11. Smt. Urmila Devi Vs Shyam Sunder &
ors.2021 (151) RD 73

12. Sayeda Akhtar Vs Abdul Ahad (2003) 7
Supreme Court Cases 52,

13. Nagubai Ammal & ors.Vs B. Shama Rao &
ors.1956 AIR (SC) 593
14. Arya Pratinidhi Sabha & ors.Vs Arvind
Niketan Charthawal & anr. 1979 All.LJ 1220.

(Delivered by Hon'ble Rajnish Kumar, J.)

1. The instant appeal under Order
XLIII Rule 1(U) of the Civil Procedure
Code, 1908 (herein-after referred as C.P.C.)
has been filed against the Judgment and
order dated 04.01.2022 passed in Civil
Appeal No.110 of 2011; Hari Bux Singh
and others versus Prakash Narain and
others by the Additional District and
Sessions Judge, Court No.1, Sultanpur, by
means of which the appeal has been
allowed and the Judgment and decree
passed by the trial court has been set aside
and the matter has been remanded back to
the trial court for fresh decision of the suit
on merits.

2. Learned counsel for the plaintiffappellants submitted that the defendantrespondents were not present when the case
was called for hearing on the date fixed,
therefore, the appeal could not have been
decided on merit by the lower appellate
court and it should have been dismissed
under Order XLI Rule 17 of C.P.C. He
further submitted that the lower appellate
court has decided the civil appeal in
violation of Order XLI Rule 31 of C.P.C.
without framing points for determination
and recording the findings thereon.

3. He further submitted that the
plea of limitation taken by the defendantrespondents was in the knowledge of the
parties and accordingly the evidence was
adduced which shows that the suit was
within limitation, therefore, merely because
any issue was not framed in regard to
limitation it cannot be a ground for setting
aside the Judgment and decree passed by
the trial court and remanding the matter. It
2 All. Prakash Narain & Ors. Vs. Hari Bux Singh & Ors.
11
was further submitted that no objection to
the commission report was filed by the
defendant-respondents, therefore, there was
no dispute in regard to the commission
report and if court would have been
dissatisfied
with
the
report
of
the
commissioner, it could have directed
further inquiry in the matter or examined
the commissioner, but it was not done,
therefore, it can also not be a ground for
remand. Thus submission was that the
impugned Judgment and order is not
sustainable in the eyes of law and it is
liable to be set aside. He relied on the
following case laws:

 i. Nagubai Ammal and others
versus B. Shama Rao and others; 1956
AIR (Supreme Court) 593
 ii. Arya Pratinidhi Sabha and
others versus Arvind Niketan Charthawal
and another; 1979 All.LJ 1220

iii. Abdur Rahman and others
versus Athifa Begum and others; (1996) 9
Supreme Court Cases 62,

iv. Sayeda Akhtar versus Abdul
Ahad; (2003) 7 Supreme Court Cases 52,

v. Malluru Mallappa (dead)
through
legal
representatives
versus
Kuruvathappa and others; (2020) 4
Supreme Court Cases 313,

vi. Smt. Urmila Devi versus
Shyam Sunder and others; 2021 (151) RD
73,

vii. Sathyanath and another
versus Sarojamani; (2022) 7 Supreme
Court Cases 644,

viii. Janki Prasad versus Sanjay
Kumar and others; 2022 (1) ADJ 312 (LB),

ix. Benny D'Souza and ors.
Versus Melvin D'Souza & Ors.; 2023
LiveLaw (SC) 1032

4. Per contra, learned counsel for
the defendant-respondents submitted that
the lower appellate court has allowed the
appeal and the appeal has been finally
decided on the insistence of the plaintiffappellants, therefore, the plea that in
absence of learned counsel for the plaintiffrespondents, the appeal should have been
dismissed under Order XLI Rule 17 of
C.P.C. is not tenable. Even otherwise he is
not an aggrieved person, once an appeal
has been decided and allowed by the lower
appellate court because the appeal was filed
by the defendant-respondents and they have
no grievance. The defendant-respondents
may have aggrieved person to challenge it,
if it would have been dismissed. It was
further
submitted
that
the
plaintiffappellants have been heard by lower
appellate court and their arguments have
been considered and no objection to the
commission report was filed. However,
portion of possession during pendency of
the suit is not identifiable.

5. On the basis of above, the
submission of learned counsel for the
defendant-respondents
was
that
the
impugned Judgment and order passed by
the lower appellate court does not suffer
from any illegality or error. The appeal has
been filed on misconceived and baseless
grounds, which is liable to be dismissed
with costs.

6.
I
have
considered
the
submissions of learned counsel for the
parties and perused the records.

7. The plaintiff-appellants filed a
suit
for
permanent
injunction
and
mandatory injunction claiming the land in
dispute. The suit was contested by the
defendant-respondents by filing written
statement. On the basis of pleadings of the
parties, six issues were framed by the trial
court.
Thereafter
oral
as
well
as
12 INDIAN LAW REPORTS ALLAHABAD SERIES
documentary evidence was adduced by the
parties. A commission was also got
conducted during pendency of the suit and
the commission report along with site plan
was submitted by the Commissioner. The
learned trial court, after considering the
pleadings of the parties, evidence and
material on record, decreed the suit for
permanent injunction as well as mandatory
injunction by means of the Judgment and
decree dated 30.04.2011 passed in Original
Suit No.47 of 2005; Prakash Narain Shukla
& others versus Hari Bux Singh & others
and
the
defendant-respondents
were
directed to remove the construction, if any
made during pendency of the suit on the
land in dispute shown as Da, Ya, Ma, Ka,
Ba, Kha Da. Being aggrieved by the
Judgment and decree passed by the trial
court Civil Appeal No.110 of 2011 was
filed by the defendant-respondents, which
was not being argued by the defendantrespondents and was being got adjourned
repeatedly, therefore, on 04.01.2022, the
request for adjournment of the appeal was
rejected as serious objection was also
raised on adjournment by learned counsel
for the plaintiff-appellants. The learned
lower appellate court, after considering an
order passed by predecessor rejecting
application for adjournment and order
passed by High Court and submissions of
plaintiff-appellants
that
since
the
defendant-respondents are not arguing the
appeal
despite
sufficient
opportunity
granted by the court and in these
circumstances instead of dismissing the
appeal in casual manner, it would be
appropriate to pass order on merit, decided
the appeal after hearing learned counsel for
the plaintiff-appellants and considering his
submissions.

8. Learned lower appellate court
considering the grounds raised in the
appeal and the arguments advanced by
learned counsel for the plaintiff-appellants
allowed the appeal on two grounds, first of
which is that despite specific plea in
paragraph 44 of the written statement of
suit being time barred, no issue has been
framed and if issue would have been
framed, the defendant-respondents would
have to prove the same by adducing the
evidence and the parties would have led
evidence accordingly on the same. The
second is that though the report of the
commission was on record, but the same
has not been adjudicated on merits and
remanded the matter after setting aside the
Judgment and decree passed by the trial
court for decision afresh on merits after
framing additional issue and disposal of
commission report on merit and affording
opportunity of hearing to both the parties.

9. In view of above, first question
for consideration in this appeal is as to
whether
lower
appellate
court
has
committed an illegality or error in deciding
and allowing the appeal in absence of
learned
counsel
for
the
defendantrespondents, who had filed the appeal, on
the date fixed for hearing.

10. Order XLI Rule 17 of C.P.C.
provides dismissal of appeal for appellant's
default. Sub rule 1 of Rule 17 has been
amended by High Court Amendment
deleting the words "on the day fixed, or on
any other day to which the hearing may be
adjourned". The Rule 17 of Order XLI
C.P.C. along with High Court Amendment
is extracted below:

"17. Dismissal of appeal for
appellants' default.-(1) Where on the day
fixed, or on any other day to which the
hearing may be adjourned, the appellant
does not appear when the appeal is called
2 All. Prakash Narain & Ors. Vs. Hari Bux Singh & Ors.
13
on for hearing, the Court may make an
order that the appeal be dismissed.

[Explanation.-Nothing in this
sub-rule shall be construed as empowering
the Court to dismiss the appeal on the
merits.]

(2) Hearing appeal ex parte.-
Where the appellant appears and the
respondent does not appear, the appeal
shall be heard ex parte."

High Court Amendment

Allahabad- In sub rule (1) delete
the words "on the day fixed, or on any
other day to which the hearing may be
adjourned""

11. Sub rule 1 of the aforesaid Rule
17 of Order XLI as amended by the High
Court Amendment provides that "where the
appellant does not appear when the appeal
is called on for hearing, the Court may
make an order that the appeal be
dismissed". Explanation inserted to sub
rule 1 w.e.f. 01.02.1977 provides that
nothing in this sub-rule shall be construed
as empowering the Court to dismiss the
appeal on the merits. Thus where the
appellant does not appear when the appeal
is called on for hearing, the court may
dismiss the appeal, but it would not be
dismissed
on
merits
in
absence
of
appellant.

12. In the present case, learned
counsel for the defendant-respondents, who
had filed the appeal before the lower
appellate court, sought adjournment on the
date when the appeal was called for
hearing. It was opposed by the plaintiffappellants on the ground that despite
sufficient
opportunity
granted,
the
defendant-respondents are not arguing the
appeal.
The
lower
appellate
court,
considering the application and objection
and rejection of request earlier by his
predecessor and an order dated 02.11.2018
passed by Allahabad High Court in Misc.
Single No.32718 of 2018; Hari Bux Singh
versus Addl. District Judge Court No.1
Sultanpur and Ors. in which it was held that
the case would not be adjourned, rejected
the
request
for
adjournment
and
considering the opposition of the plaintiffappellants and recording that despite
sufficient
opportunity
granted,
the
defendant-respondents, appellants therein
are not participating in hearing, it would be
appropriate to pass order on merit instead
of dismissing the appeal in a causal
manner. Thereafter proceeded to consider
the grounds of appeal and the contentions
of the plaintiff-appellants and allowed the
appeal on the aforesaid grounds referred in
paragraph 8 of this order, Thus firstly the
appeal has not been dismissed on merit in
absence of the appellants therein i.e. the
defendant-respondents
by
the
lower
appellate court. Secondly, after considering
the grounds raised in the appeal and
contentions of learned counsel for the
plaintiff-appellants, lower appellate court
found that there are procedural errors
committed by learned trial court and
allowed the appeal and after setting aside
the decree remanded the matter for disposal
afresh on merit, therefore, the contention of
learned counsel for the plaintiff-appellants
is misconceived and not tenable in the eyes
of law as the appeal has not been dismissed
on merit or even the case has not been
decided finally on merit. Even otherwise
the defendant-respondents, who had filed
the appeal are not aggrieved by it.

13. The Hon'ble Supreme Court, in
the case of Abdur Rahman and others
versus Athifa Begum and others (supra),
held that the Explanation to Order XLI
Rule 17(1) C.P.C. says that nothing in this
sub-rule shall be construed as empowering
14 INDIAN LAW REPORTS ALLAHABAD SERIES
the Court to dismiss the appeal on the
merits in absence of appellant's counsel. A
coordinate Bench of this Court, in the case
of Janki Prasad versus Sanjay Kumar and
others (supra), has taken similar view.

14. Now the question arises as to
whether the procedural errors on which the
lower appellate court has allowed the
appeal, are such, which could not have
been considered and decided by lower
appellate
court and the matter was
inevitably to be remanded to the trial court
to decide afresh as directed by the lower
appellate court, which is to be seen in
appeal under Order 43 Rule (1) (u) of
C.P.C.

15. 27. The Hon'ble Supreme
Court, in the case of Narayanan Vs.
Kumaran and Others; (2004) 4 SCC 26,
has held that it is quite safe to adopt that
appeal under order 43 Rule (1) clause (u)
should be heard only on the ground
enumerated in Section 100. The relevant
paragraph-17 of the judgment is extracted
here-in-below:-

"17. It is obvious from the above
rule that an appeal will lie from an order of
remand only in those cases in which an
appeal would lie against the decree if the
Appellate Court instead of making an order
of remand had passed a decree on the
strength of the adjudication on which the
order of remand was passed. The test is
whether in the circumstances an appeal
would lie if the order of remand where it is
to be treated as a decree and not a mere
order. In these circumstances, it is quite
safe to adopt that appeal under order 43
Rule (1) clause (u) should be heard only on
the ground enumerated in Section 100. We,
therefore, accept the contention of Mr.
T.L.V.Iyer and hold that the appellant
under an appeal under order 43 Rule (1)
clause (u) is not entitled to agitate
questions of facts. We, therefore, hold that
in an appeal against an order of remand
under this clause, the High Court can and
should
confine
itself
to
such
facts,
conclusions and decisions which have a
bearing on the order of remand and cannot
convass all the findings of facts arrived at
by the Lower Appellate Court."

16. The appeal under Section 96
C.P.C. is a valuable right of a party and
Section 107 of the C.P.C. provides the
powers of appellate court, which is
extracted here-in-below:-

 "107.
Powers
of
Appellate
Court.-(1) Subject to such conditions and
limitations as may be prescribed, an
Appellate Court shall have power-

(a) to determine a case finally;

(b) to remand a case;
 (c) to frame issues and refer them
for trial;

(d) to take additional evidence or
to require such evidence to be taken.

(2) Subject as aforesaid, the
Appellate Court shall have the same
powers and shall perform as nearly as may
be the same duties as are conferred and
imposed by this Code on Courts of original
jurisdiction in respect of suits instituted
therein."

17. According to the aforesaid Sub
Section 1 of Section 107 an appellate court
has power to determine a case finally after
taking additional evidence, if required, or
to frame issues and refer for trial and
require any evidence to be taken, if
required or remand a case. Sub-Section (2)
of Section 107 of C.P.C. provides that
subject to the provisions made in subsection(1), the appellate court shall have
2 All. Prakash Narain & Ors. Vs. Hari Bux Singh & Ors.
15
the same powers and duties as are
conferred and imposed on the courts of
original jurisdiction of suits instituted
therein. Thus, the first appellate court has
all the powers of a trial court while
deciding the appeal, therefore, the appellate
court is required to consider all the
pleadings of the parties, evidence and
material
available
on
records
while
deciding the appeal. Therefore, if any plea
or evidence has not been considered by the
trial court, the first appellate court can
consider the same also and frame the issue,
if required, and consider it on the basis of
evidence, if it is sufficient or taking
additional evidence or get the evidence
recorded
and
record
the
findings
accordingly, while deciding the appeal.

18. Order XLI Rule 31 of C.P.C.
provides the contents etc. of judgment of
appellate court, which is extracted here-inbelow:-

"31.
Contents,
date
and
signature of judgment.-The judgment of
the Appellate Court shall be in writing and
shall state- been recorded

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision;
and

(d) where the decree appealed
from is reversed or varied, the relief to
which the appellant is entitled, and shall at
the time that it is pronounced be signed and
dated by the Judge or by the Judges
concurring therein.

Allahabad._ At the end of the
rule, substitute a semi-colon for the full
stop and add the following:

"Provided
that
where
that
presiding Judge pronounces his judgment
by dictation to a shorthand-writer in open
court, the transcript of the judgment so
pronounced shall, after such revision as
may be deemed necessary, be signed by the
Judge and shall bear the date of its
pronouncement."

19. In view of above, the appellate
court is required to record its reasons for
the decision and it can reverse or vary the
decree against which the appeal has been
preferred and in such case the relief to
which the appellant is entitled, therefore,
the appellate court can not only reverse the
findings of the trial court but also take a
different view and it can be done after
considering the pleadings, evidence and
material on record as a trial court and also
considering the findings recorded by the
trial court and as to whether the same have
rightly and in accordance with law been
recorded or not after evaluating the
pleadings, evidence and material on record
as a trial court. It is for the reason that if
any plea or evidence has been left to be
considered by the trial court, it may
appropriately be considered by the first
appellate court to avoid injustice to either
of the parties and to determine the case
finally, if it can be done. Thus the first
appeal is in continuation of trial.

20. The Hon'ble Supreme Court, in
the case of Vasant Ganesh Damle Vs.
Shrikant Trimbak Datar and Another;
(2002) 4 SCC 183, has held that the appeal
is considered to be an extension of a suit
because under Section 107 of the Code of
Civil Procedure, the appellate court has the
same powers as conferred by the code on
courts of original jurisdiction in respect of
suits
situated
therein.
The
relevant
paragraph-9 is extracted here-in-below:-

"9. The appeal is considered to be
an extension of the suit because under
Section 107 of the Code of Civil Procedure,
16 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellate court has the same powers as
are conferred by the Code on courts of
original jurisdiction in respect of suits
instituted therein. Such a power can be
exercised by the appellate court "as nearly
as may be" exercised by the trial court
under the Code. If the powers conferred
upon the trial court are under a specified
statute and not under the Code, it has to be
ascertained as to whether such a power
was intended to be exercised by the
appellate court as well. Such a position can
be ascertained by having a reference to the
specified law by keeping in mind the
legislative intention of conferment of power
on the appellate court either expressly or
by necessary implication."

21. The Hon'ble Supreme Court, in
the case of Malluru Mallappa (Dead)
through
Legal
Representatives
Vs.
Kuruvathappa and Others (supra) has held
that it is a settled position of law that an
appeal is a continuation of the proceedings
of the original court. Ordinarily, the
appellate jurisdiction involves a re-hearing
on law as well as on fact and is invoked by
an aggrieved person. The first appeal is a
valuable right of the appellant and therein
all questions of fact and law decided by the
trial court are open for re-consideration,
unlike second appeal under Section 100
CPC. Therefore, the first appellate court is
required to address itself to all the issues
and decide the case by giving reasons. The
court of first appeal must record its findings
only after dealing with all issues of law as
well as fact and with the evidence, oral as
well as documentary, led by the parties.
The relevant paragraphs 10 to 14 are
extracted here-in-below:-

 "10. Section 96 of the CPC
provides for filing of an appeal from the
decree passed by any court exercising
original jurisdiction to the court authorized
to hear the appeals from the decisions of
such courts. In the instant case, the appeal
from the decree passed by the trial court
lies to the High Court. The expression
'appeal' has not been defined in the CPC.
Black's Law Dictionary (7th Edn.) defines
an appeal as "a proceeding undertaken to
have a decision reconsidered by bringing it
to a higher authority." It is a judicial
examination of the decision by a higher
court of the decision of a subordinate court
to rectify any possible error in the order
under appeal. The law provides the remedy
of an appeal because of the recognition
that those manning the judicial tiers too
commit errors.
 11. In Hari Shankar v. Rao
Girdhari Lal Chowdhury 1 it was held that
a right of appeal carries with it a right of
re-hearing on law as well as on fact, unless
the statute conferring a right of appeal
limits the re-hearing in some way as has
been done in second appeal arising under
the CPC.

12. In Shankar Ramchandra
Abhyankar v. Krishnaji Dattatreya Bapat2
it was held thus:

5. ........... In the well known
work of Story on Constitution (of United
States), Vol. 2, Article 1761, it is stated that
the
essential
criterion
of
appellate
jurisdiction is that it revises and corrects
the proceedings in a cause already
instituted and does not create that cause.
The appellate jurisdiction may be exercised
in a variety of forms and, indeed, in any
form in which the Legislature may AIR
1963 SC 698 1969 (2) SCC 74 choose to
prescribe. According to Article 1762 the
most usual modes of exercising appellate
jurisdiction, at least those which are most
known in the United States, are by a writ of
error, or by an appeal, or by some process
of removal of a suit from an inferior
2 All. Prakash Narain & Ors. Vs. Hari Bux Singh & Ors.
17
tribunal. An appeal is a process of civil law
origin and removes a cause, entirely
subjecting the fact as well as the law, to a
review and a retrial......."

13. It is a settled position of law
that an appeal is a continuation of the
proceedings
of
the
original
court.
Ordinarily,
the
appellate
jurisdiction
involves a re-hearing on law as well as on
fact and is invoked by an aggrieved person.
The first appeal is a valuable right of the
appellant and therein all questions of fact
and law decided by the trial court are open
for re-consideration. Therefore, the first
appellate court is required to address itself
to all the issues and decide the case by
giving reasons. The court of first appeal
must record its findings only after dealing
with all issues of law as well as fact and
with the evidence, oral as well as
documentary, led by the parties. The
judgment of the first appellate court must
display conscious application of mind and
record findings supported by reasons on all
issues and contentions [see: Santosh
Hazari v. Purushottam Tiwari (Deceased)
By Lrs.3, Madhukar and others v. Sangram
and Others4, B. M. Narayana Gowda v.
Shanthamma (Dead) By Lrs. and Another5,
H. K. N. Swami v. Irshad Basith (Dead) By
Lrs.6 and M/s. Sri Raja Lakshmi Dyeing
Works v. Rangaswamy Chettiar7].

14. A first appeal under Section
96 of the C.P.C. is entirely different from a
second appeal under Section 100. Section
100 expressly bars second appeal unless a
question of law is involved in a case and
the question of law so involved is
substantial in nature."

22. The provisions of remand made
in Rule-23, 23-A and 25 of Order XLI of
C.P.C. are relevant for considering the
issue of remand, which can be invoked
while deciding an appeal. The same are
extracted here-in-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 cop
of its judgment and 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;
and the evidence (if any) recorded during
the original trial shall, subject to all just
exceptions, be evidence during the trial
after remand.

The Following Allahabad High
Court Amendment has been made in
aforesaid Rule 23:

a. (i) Insert he following after the
words 'and the decree is reversed in
appeal", namely:

"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"; and

(ii)
delete
the
words
"the
Appellate Court" occurring thereafter and
delete also the words

"if it thinks fit", occurring after
the words "may".

23.(A)- 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.
18 INDIAN LAW REPORTS ALLAHABAD SERIES

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 within such time
as may be fixed by the Appellate Court or
extended by it from tim e to time."

23. In view of above, Rule 23 as
amended by the Allahabad High Court is
'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 while reversing or setting aside the
decree under appeal considers it necessary
in the interest 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 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.' The aforesaid Rule 23(A)
provides in regard to the appeal, which has
been preferred against the decree which has
been made 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. In both the
aforesaid
rules,
the
power
of
First
Appellate Court is one and the same as
given in Rule 23 according to which, in
case of reversal of a decree in appeal the
Appellate Court may remand the case for
re-trial. Rule 25 provides the contingencies
in which the Appellate Court can frame the
issues and refer the matter to the Trial
Court for taking evidence on them and
trying the said issues, who shall send then
to the same with it's findings thereon to the
Appellate Court and the Appellate Court
can decide the appeal accordingly. Rule 25
provides that 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 is essential to
the right decision of the suit upon merits,
the Appellate Court may frame the said
issues and refer to the concerned court for
trial of same after taking evidence and
referring to the Appellate Court with it's
findings and reasons thereon and then the
Appellate Court may decide the appeal.
Thus this procedure can be followed if the
Trial Court has omitted to frame or try any
issue or determine any question of fact.

24. The Hon'ble Supreme Court, in
the case of Syeda Rahimunnisa Vs. Malan
BI (Dead) by L.Rs. and Another; 2016
(119) ALR 485, has held that the power of
the Appellate Court to remand the case to
subordinate court is contained in order XLI
Rule 23, 23-A and 25 of C.P.C. It is,
therefore, obligatory upon the appellant to
bring the case under any of these provisions
before claiming a remand and the Appellate
Court is required to record reasons as to
why it has taken recourse to any one out of
three Rules of Order XLI of C.P.C. for
2 All. Prakash Narain & Ors. Vs. Hari Bux Singh & Ors.
19
remanding the case to the Trial Court.
Relevant paragraph 35 is extracted here-inbelow:-

 "35. It is a settled principle of law
that in order to claim remand of the case to
the Trial Court, it is necessary for the
appellant to first raise such plea and then
make out a case of remand on facts. The
power of the Appellate Court to remand the
case to subordinate court is contained in
order XLI Rule 23, 23-A and 25 of CPC. It
is, therefore, obligatory upon the appellant
to bring the case under any of these
provisions before claiming a remand. The
Appellate Court is required to record
reasons as to why it has taken recourse to
any one out of the three Rules of Order XLI
of CPC for remanding the case to the Trial
Court. In the absence of any ground taken
by the respondents (appellants before the
First Appellate Court and High Court)
before the First Appellate Court and the
High Court as to why the remand order in
these cases is called for and if so under
which Rule of Order XLI of CPC and
further in the absence of any finding, there
was no justification on the part of the High
Court to remand the case to the Trial
Court. The High Court instead should have
decided the appeals on merits. We,
however, do not consider proper to remand
the case to High Court for deciding the
appeals on merits and instead examine the
merits of the case in these appeals."

25. The Hon'ble Supreme Court, in the
case of Jagannathan Vs. Raju Sigamani
and Another; (2012) 5 SCC 540, has held
that where the Trial Court has disposed of
the Suit on merits and the decree is
reversed in appeal and the Appellate Court
considered that retrial is necessary, the
Appellate Court may remand the suit to the
Trial Court. The relevant paragraph-7 is
extracted here-in-below:-

"(7) 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."

26. The Hon'ble Supreme Court, in
the case of P. Purushottam Reddy and
Another Vs. Pratap Steels Ltd.; (2002) 2
SCC 686, has held that the Appellate
Court should be circumspect in ordering a
remand when the case is not covered
either by Rule 23 or Rule 23-A or Rule 25
C.P.C. and an unwarranted order of
remand gives the litigation an undeserved
lease of life and, therefore must be
avoided.

27. The Hon'ble Supreme Court, in
the case of Maya Devi (Dead) through
LRs Vs. Raj Kumari Batra (Dead);
(2010) 9 SCC 486, has held that whether or
not the Appellate Court should remit the
matter is discretionary with the Appellate
Court and would largely depend upon the
nature of the dispute, the nature and the
extent of evidence that may have to be
appreciated, the complexity of the issues
that arise for determination and whether
remand is going to result in avoidable
prolongation of the litigation between the
parties. The relevant paragraph-30 is
extracted here-in-below:-
20 INDIAN LAW REPORTS ALLAHABAD SERIES
 "(17). Recording of reasons in
cases where the order is subject to further
appeal is very important from yet another
angle. An Appellate Court or the authority
ought to have the advantage of examining
the reasons that prevailed with the Court or
the authority making the order. Conversely,
absence of reasons in an appealable order
deprives the Appellate Court or the
authority of that advantage and casts an
onerous responsibility upon it to examine
and determine the question on its own. An
Appellate Court or authority may in a given
case decline to undertake any such exercise
and remit the matter back to the lower
Court or authority for a fresh and reasoned
order. That, however, is not an inflexible
rule,
for
an
Appellate
Court
may
notwithstanding the absence of reasons in
support of the order under appeal before it
examine the matter on merits and finally
decide the same at the appellate stage.
Whether or not the Appellate Court should
remit the matter is discretionary with the
Appellate Court and would largely depend
upon the nature of the dispute, the nature
and the extent of evidence that may have to
be appreciated, the complexity of the issues
that arise for determination and whether
remand is going to result in avoidable
prolongation of the litigation between the
parties. Remands are usually avoided if the
Appellate Court is of the view that it will
prolong the litigation."

28. Hon'ble Supreme Court, in the
case of Sathyanath and another versus
Sarojamani (supra), has held that the
objective of the provisions of Order XLI
Rules 24 and 25 is that if evidence is
recorded by the learned Trial Court on all
the issues, it would facilitate the first
Appellate Court to decide the questions of
fact even by reformulating the issues. It is
only when the first Appellate Court finds
that there is no evidence led by the parties,
the first Appellate Court can call upon the
parties to lead evidence on such additional
issues, either before the Appellate Court or
before the Trial Court. All such provisions
of law and the amendments are to ensure
one objective i.e., early finality to the lis
between the parties. Relevant paragraph 34
of which is extracted herein-below:

"34.
The
objective
of
the
provisions of Order XLI Rules 24 and 25 is
that if evidence is recorded by the learned
Trial Court on all the issues, it would
facilitate the first Appellate Court to decide
the questions of fact even by reformulating
the issues. It is only when the first
Appellate Court finds that there is no
evidence led by the parties, the first
Appellate Court can call upon the parties
to lead evidence on such additional issues,
either before the Appellate Court or before
the Trial Court.