# Smt. Renu Singh v. Shubhang Chauhan & Anr

- **Citation:** (2024) 3 ILRA 1363
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-14
- **Case number:** First Appeal From Order No. 811 of 2015
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-renu-singh-v-shubhang-chauhan-anr-51583
- **Pages:** 14

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Order XLIII Rule 1(u) - Order XIV - Order
XLI - Rules 3, 23-A, 25 - Appeal against
order dated 12.08.2015 remanding suit for fresh
trial - Held, trial court committed gross
procedural irregularities by framing issues in
judgment itself without prior framing under
Order XIV and affording opportunity for
evidence - First Appellate Court rightly set aside
trial court's order dated 17.11.2014 and
remanded matter under Order XLI Rule 23-A for
fresh trial after proper issue framing and
evidence - Additional issues of substitution,
guardianship, and limitation not framed by trial
court, necessitating remand - Appeal under
Order XLIII Rule 1(u) limited to examining
legality of remand order, not merits - No
illegality in Appellate Court's order. (Para 17-40)

Appeal dismissed.

List of Cases Cited:

## Text

_Characters 0–39,896 of 47,116. This is a partial read: ask again with offset=39896 for what follows._

3 All. Smt. Renu Singh Vs. Shubhang Chauhan & Anr.
1363
about the truthfulness and credibility of the
witnesses.

40. Therefore, in the light of the
judgment in Krishan Kumar's Case
(Supra), we hold that the Trial Court has
appreciated the evidence in an utterly
perverse manner i.e. against the weight of
the evidence and conviction of the
appellant cannot be upheld and they are
entitled to acquittal.

41. In view of the above, this appeal
is allowed. The impugned judgment of
conviction and order of sentence are set
aside. Let the appellants, Shobha Behel and
Ashish Arora, be set free forthwith and
their bail bonds and sureties be discharged.

42. Record and proceedings be sent
back to the Trial Court forthwith.
----------
(2024) 3 ILRA 1363
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.03.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order No. 811 of 2015

Smt. Renu Singh ...Appellant
Versus
Shubhang Chauhan & Anr. ...Respondents

Counsel for the Appellant:
Mohd. Aslam Khan

Counsel for the Respondents:
Ankit Srivastava

Civil Law - Civil Procedure Code, 1908 -
Order XLIII Rule 1(u) - Order XIV - Order
XLI - Rules 3, 23-A, 25 - Appeal against
order dated 12.08.2015 remanding suit for fresh
trial - Held, trial court committed gross
procedural irregularities by framing issues in
judgment itself without prior framing under
Order XIV and affording opportunity for
evidence - First Appellate Court rightly set aside
trial court's order dated 17.11.2014 and
remanded matter under Order XLI Rule 23-A for
fresh trial after proper issue framing and
evidence - Additional issues of substitution,
guardianship, and limitation not framed by trial
court, necessitating remand - Appeal under
Order XLIII Rule 1(u) limited to examining
legality of remand order, not merits - No
illegality in Appellate Court's order. (Para 17-40)

Appeal dismissed.

List of Cases Cited:

1. Syeda Rahimunnisa Vs Malan BI (Dead) by
L.Rs., 2016 (119) ALR 485

2.
Sree
Panimoola
Devi
Temple
Vs
Bhuvanachandran Pillai, (2015) 12 SCC 698

3. Jagannathan Vs Raju Sigamani, (2012) 5 SCC
540

4. P. Purushottam Reddy Vs Pratap Steels Ltd.,
(2002) 2 SCC 686

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

6. Narayanan Vs Kumaran, (2004) 4 SCC 26

7. J. Balaji Singh Vs Diwakar Cole, (2017) 14
SCC 207

8. Nedunuri Kameswaramma Vs Sampati Subba
Rao, AIR 1963 SC 884

9. Brijlal Vs St. of U.P., (2005) 13 SCC 373

10. Ashwinkumar K. Patel Vs Upendra J. Patel,
(1999) 3 SCC 161

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

1. Heard Mohd. Arif Khan, learned
Senior Advocate assisted by Shri Akbar Ali
Khan and Mohd. Shadab Khan, Advocates,
1364 INDIAN LAW REPORTS ALLAHABAD SERIES
holding brief of Mohd. Aslam Khan,
learned counsel for the appellant and Shri
Ankit Srivastava, learned counsel for the
respondents.

2. This appeal under Order-XLIII,
Rule-1(u) of the Civil Procedure Code,
1908 (here-in-after referred as C.P.C.) has
been preferred by the plaintiff-appellant
assailing the judgment and order dated
12.08.2015 passed by the Additional
District Judge, Court No.11, Sitapur in
Civil Appeal No.105 of 2014; Subhang
Chauhan and Others Vs. Smt. Renu Singh,
by means of which the appeal preferred by
the
defendant-respondents
has
been
allowed and the judgment and order dated
17.11.2014 passed in Regular Suit No.491
of 2002; Smt. Renu Singh Vs. Bhagwan
Bux Singh and Others has been set-aside
and the matter has been remanded to the
Trial Court to pass a fresh order in the light
of the observations made in the judgment
of the Appellate Court after affording
sufficient opportunity of filing written
statement to the defendants and framing the
required issues and affording opportunity
of evidence to the parties on the same and
hearing.

3. Learned counsel for the appellant
submitted that the Trial Court had decided
the suit in accordance with law after
framing the issues and affording sufficient
opportunity to the parties. Even then, if the
learned Appellate Court was of the view
that certain issues have not been framed
and decided by the Trial Court, the
Appellate Court, instead of remanding the
whole case for a fresh trial, could have
framed the additional issues and referred to
the Trial Court and directed to take the
additional evidence and called the same
with its findings and decided the appeal
after considering the same in accordance
with law. Thus the submission is that the
judgment and order passed by the first
Appellate Court is not sustainable in the
eyes of law and liable to be set-aside. He
relied on Syeda Rahimunnisa Vs. Malan
BI (Dead) by L.Rs. and Another; 2016
(119) ALR 485, Sree Panimoola Devi
Temple
and
Others
Vs.
Bhuvanachandran Pillai and Others;
(2015) 12 SCC 698, Jagannathan Vs.
Raju Sigamani and Another; (2012) 5
SCC 540, P. Purushottam Reddy and
Another Vs. Pratap Steels Ltd.; (2002) 2
SCC 686, Narendra Vs. K. Meena; 2016
(119) ALR 494.

4. Per contra, learned counsel for the
respondents submitted that there is no error
or illegality in the impugned judgment and
order dated 12.08.2015 passed by the
Appellate Court because the learned Trial
Court had decided the suit committing
several irregularities. He further submitted
that after exchange of pleadings, the issues
are required to be framed and the
opportunity afforded to the parties to
adduce the evidence on the said issues but
in the present case the issues were framed
in the judgment and order dated 17.11.2014
passed by the Trial Court itself and without
affording any opportunity to adduce
evidence on the said issues, the suit was
dismissed, which could not have been
done. Since the issues were not framed
after exchange of pleadings, therefore the
parties could not know as to what evidence
is to be adduced, therefore the judgment,
order and decree passed by the Trial Court
has been rightly and in accordance with law
set aside by the Appellate Court and the
Appellate Court remanded the case to
decide a fresh as per the observations and
directions issued by the First Appellate
Court. Thus the submission is that the
instant
appeal
has
been
filed
on
3 All. Smt. Renu Singh Vs. Shubhang Chauhan & Anr.
1365
misconceived and baseless grounds and it
is liable to be dismissed.

5. He further submitted that the first
appeal under Order-XLIII, Rule-1 (u) is in
the nature of appeal under Section 100,
therefore it could be decided only on the
legal issues. He relied on Narayanan Vs.
Kumaran and Others; (2004) 4 SCC 26
and J. Balaji Singh Vs. Diwakar Cole and
Others; (2017) 14 SCC 207.

6.

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

7. The appellant filed a suit for
permanent injunction against late Bhagwan
Bux Singh, who was her father-in-law, for
restraining him from alienating movable
and immovable properties on the ground
that the husband of the appellant late
Rajesh Kumar Singh died on 27.04.2002 on
account of ailment of brain cancer. Due to
death of husband of the appellant, the late
father-in-law of the appellant became
mentally derailed. The husband of the
appellant
had
earned
money
from
agricultural land/ crops etc. and raised
constructions in the year 1995 and shifted
alongwith his family to Ganeshpur. She
further alleged that the father in law of the
appellant was intending to transfer /
alienate the property in dispute under the
influence of some relatives and in case he
is not restrained from doing so, the
appellant will suffer irreparable loss and
injury as she has no other source of her
livelihood and the property in suit is Joint
Hindu Family property and the appellant
has got right and title in the same. During
pendency of the suit, late Bhagwan Bux
Singh died, therefore the respondent no.1
i.e. Subhang Chauhan, minor son of Raj
Kamal Singh Chauhan and Smt. Usha
Chauhan; mother of the respondent no.1
was substituted. Smt. Usha Chauhan also
died during pendency of the suit, therefore
the respondent no.2 was substituted. The
suit was amended and sale deeds dated
29.08.2002, 18.09.2002 and will dated
09.04.2008 were challenged with prayer for
their cancellation.

8. Late Bhagwan Bux Singh filed the
written statement. After his death, the
substituted parties had not appeared,
therefore the case had proceeded ex-party.

9. It appears that during pendency of
the suit, the respondent no.1 had become
major. The suit was decided by framing the
issues in the judgment and order dated
21.11.2014 itself. The judgment and order
dated 21.11.2014 was assailed by the
respondents by filing the first appeal under
Section 96 of C.P.C. The First Appellate
Court after considering the grounds raised
in the appeal and the record of the Trial
Court and after affording opportunity to the
parties passed the impugned judgment and
order dated 12.08.2015 setting aside the
judgment and order dated 17.11.2014
passed by the Trial Court and remanded the
matter to the Trial Court with a direction to
decide the suit a fresh after sufficient
opportunity of written statement to the
defendants and framing the required issues
and affording opportunity of evidence to
the parties on the same and hearing. Being
aggrieved the instant appeal has been filed
under Order-XLIII, Rule-1 (u) of C.P.C
assailing the judgment and order passed by
the Appellate court. The ground taken and
pressed before this Court is that there was
no illegality or error in the order passed by
the Trial Court, even then if the first
Appellate court was of the view that some
issues were not framed and adjudicated by
the Trial Court, the Appellate Court could
1366 INDIAN LAW REPORTS ALLAHABAD SERIES
have decided the appeal after framing the
additional issues and calling evidence and
findings on the same from the Trial Court,
instead of remanding the case for a fresh
decision.

10. In view of above, the issue to be
decided in this case is as to whether the
Trial Court had decided the suit by passing
an order in accordance with law, which
does not suffer from any illegality or
error,if not as to whether First Appellate
Court has set-aside the judgment and order
of the Trial Court and remanded the matter
to decide a fresh rightly and in accordance
with law or the first Appellate Court could
have decided the appeal, after framing the
issues and referring to the Trial Court with
a direction to take additional evidence on
the said issues and after trying the said
issues send to the Appellate Court with it's
finding thereon and considering the same.

11. To consider the aforesaid issue
involved in this case, this Court will first
consider as to whether the judgment and
order passed by the Trial Court is in
accordance with law and it does not suffer
from any illegality or error.

12. The rule Rule-1 of Order-XIV
of C.P.C provides about framing of issues.
Sub-rule (1) provides that issues arise when
a material proposition of fact or law is
affirmed by the one party and denied by the
other. Sub-rule (5) provides that at the first
hearing of the suit the Court shall, after
reading
the
plaint
and
the
written
statements, if any, and after examination
under rule 2 of Order X and after hearing
the parties or their pleaders, ascertain upon
what material propositions of fact or of law
the parties are at variance, and shall
thereupon proceed to frame and record the
issues on which the right decision of the
case appears to depend, therefore the issues
are required to be framed at the first
hearing of the suit on the basis of the
pleadings made in the plaint and the written
statement on which right decision of the
case appears to depend. Rule 2 (1) of
Order-XIV provides that notwithstanding
that a case may be disposed of on a
preliminary issue, the Court shall, subject
to the provisions of sub-rule (2), pronounce
judgment on all issues. Sub rule (2) of Rule
2 provides the order in which the issues
may be decided. Rule 3 of order XIV
provides as to from what material, the
issues may be framed. Rule 4 order XIV
provides that the court may examine
witnesses or documents before framing
issues. Rule-5 of Order-XIV provides that
the Court may at any time before passing a
decree amend the issues or frame additional
issues on such terms as it thinks fit, and all
such amendments or additional issues as
may be necessary for determining the
matters in controversy between the parties
shall be so made or framed. Sub rule (2) of
Rules 5 of the Order XIV provides that the
Court may also, at any time before passing
a decree, strike out any issues which may
be wrongly framed or introduced.

13. In view of above, after filing of
plaint and written statement, the Court has
to frame the issues on which the parties are
at variance in their pleadings, as per the
procedure provided in Order-XIV of C.P.C.
which are required to be decided.

14. In the instant case, the Trial
Court had passed the judgement and order
without framing the issues and affording
opportunity to adduce the evidence on the
same and framing the issues in the
judgment and order itself and considering
the evidence taken prior to that, which may
be for the purpose of framing issues. It is to
3 All. Smt. Renu Singh Vs. Shubhang Chauhan & Anr.
1367
be noticed here that it is not a case in which
the parties were not at issue, therefore it
could have been decided under some
provision of Order-XV of C.P.C. because
the issues were framed in the judgment
itself by the trial court.

15. Rule -1 of Order XVI provides
that on or before such date as the Court
may appoint, and not later than fifteen days
after the date on which the issues are
settled, the parties shall present in Court a
list of witnesses whom they propose to call
either to give evidence or to produce
documents and obtain summonses to such
persons for their attendance in Court.
Therefore it is apparent that after framing
of the issues, the evidence is required to be
adduced on the said issues.

16. Rule 1 of Order XVIII C.P.C.
provides about right to begin by the
plaintiff unless there is any preliminary
objection. Rule 2 of Order-XVIII C.P.C.
provides the statement and production of
evidence. High Court amendment of
Allahabad has substituted the Rule 2 w.e.f.
24.07.1926. Substituted sub rule (1) of Rule
2 provides that on the day fixed for the
hearing of the suit or on any other day to
which the hearing is adjourned, the party
having the right to begin shall state his case
indicating the relevancy of documents
produced by him and the nature of oral
evidence which he proposes to adduce and
call his witnesses in support of the issues
which he is bound to prove. Sub-rule (2)
provides that the other party shall then state
his case and produce his evidence (if any).
Substituted Rule 2 of Order XVIII is
extracted here-in-below:-

""2. (1) On the day fixed for the
hearing of the suit or on any other day to
which the hearing is adjourned the party
having the right to begin shall state his
case, indicating the relevancy of each of
the documents produced by him, and the
nature of the oral evidence which he
proposes to adduce and shall then call his
witnesses in support of the issues which he
is bound to prove.
 (2) The other party shall then
state his case in the manner aforesaid and
produce his evidence (if any)." (w.e.f. 24-71926)"

17. In view of above on the day
fixed for the hearing of the suit or on any
other day to which the hearing is
adjourned, the party having the right to
begin shall state his case and call his
witnesses to adduce evidence in support of
the issues which he is bound to prove.
Thereafter the other party shall do the
same. Thus it is crystal clear that after
exchange of pleadings the issues are
required to be framed first by the court so
that the parties may know the issues on
which they are at variance and they have to
adduce the evidence in support of which
issue. Then the party who has to prove any
issue framed by the court, can adduce the
evidence in support of that issue. Whereas
in present case the issues have been framed
by the Trial Court in the judgment itself
and the suit has been decided without
affording opportunity to the parties to
adduce evidence on the said issues and on
the basis of the evidence taken otherwise,
which has not been adduced on the said
issues and may be for framing of issues,
therefore the Trial Court has decided the
suit without following the due procedure of
law, which is a gross illegality in the eyes
of law and the judgment and order passed
accordingly is not sustainable at all in the
eyes of law. The said judgment and order
passed by the Trial Court was challenged in
the first appeal accordingly.
1368 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Now the question arises as to
whether in view of the aforesaid gross
illegality and procedural lapse in the
judgement and order passed by the Trial
Court, the first Appellate Court has rightly
and in accordance with law has set-aside
the judgment and order of the Trial Court
and remanded the matter for decision a
fresh in accordance with the directions and
observations or the Appellate Court could
have framed the issues and referred the
matter to the Trial Court for taking
evidence on them and after trying called
with it's findings and decided the appeal.

19. The provision of remand made in
Rule-23, 23-A and 25 of Order XLI of
C.P.C. are relevant for considering the
above issue, which are extracted here-inbelow:-

"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.

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 time to time.

20. 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
3 All. Smt. Renu Singh Vs. Shubhang Chauhan & Anr.
1369
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.

21. Rule 25 of Order XLI C.P.C.
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 only if
the Trial Court has omitted to frame or try
any issue or determine any question of fact
whereas in the present case the Trial Court
has failed to follow the due procedure of
law in deciding the suit as indicated above,
therefore, this Court is of the view that this
procedure could not have been followed by
the Trial Court and it has rightly an in
accordance with law has set-aside the
judgment and order passed by the Trial
Court and remanded the matter for a fresh
decision.

22. The Hon'ble Supreme Court, in
the case of Syeda Rahimunnisa Vs.
Malan BI (Dead) by L.Rs. and Another
(supra), 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
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.
1370 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

23. The Hon'ble Supreme Court, in
the case of Sree Panimoola Devi Temple
and Others Vs. Bhuvanachandran Pillai
and Others (Supra), has held that if the
plaintiffs had not led sufficient evidence to
establish their case, as held by the High
Court, ordinarily, that should have been the
end
of
the
matter
and
in
such
circumstances, remand of the suit for denovo consideration virtually gives to the
plaintiffs a second opportunity to establish
their case. This Court is of the view that
this judgment relied by the learned counsel
for the appellant is not applicable on the
facts and circumstances of the present case
because in the present case the learned
Trial Court has failed to follow the due
procedure of law and afford opportunity in
accordance with law.

24. The Hon'ble Supreme Court, in
the case of Jagannathan Vs. Raju
Sigamani and Another (Supra), 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."

25. The Hon'ble Supreme Court, in
the case of P. Purushottam Reddy and
Another Vs. Pratap Steels Ltd. (Supra),
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. This case is not
applicable in the facts and circumstances of
the present case because in the present case
as discussed above and also as per the
findings recorded by the First Appellate
Court, the First Appellate Court has rightly
and in accordance with law has remanded
the case.

26. The Hon'ble Supreme Court, in
the case of Maya Devi (Dead) through
LRs Vs. Raj Kumari Batra (Dead)
(Supra), has held that whether or not the
Appellate Court should remit the matter is
discretionary with the Appellate Court and
3 All. Smt. Renu Singh Vs. Shubhang Chauhan & Anr.
1371
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- 17 is extracted here-in-below:-

"(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."

27. The Hon'ble Supreme Court, in
the case of Narayanan Vs. Kumaran and
Others (Supra), 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."

28. The Hon'ble Supreme Court, in
the case of J. Balaji Singh Vs. Diwakar
Cole and Others (Supra), has considered
the provisions of Order- XLIII, Rule-23,
23(A) and 25 of C.P.C. and under what
circumstances remand could have been
made and the power of this court under
Order- XLIII, Rule-1 (u) of C.P.C., on
being challenged an order of remand. The
1372 INDIAN LAW REPORTS ALLAHABAD SERIES
relevant paragraphs 13 to 21 are extracted
here-in-below:-

13. The main question, which fell
for consideration before the High Court,
was whether the first Appellate Court was
right in remanding the case to the Trial
Court for fresh trial on merits?

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,
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
3 All. Smt. Renu Singh Vs. Shubhang Chauhan & Anr.
1373
direction to decide the first appeal on
merits.

18. The High Court failed to see
that when the first Appellate Court itself
did not decide the appeal on merits and
considered it proper to remand the case to
the Trial Court, a fortiori, the High Court
had no jurisdiction to decide the appeal on
merits. Moreover, Order 43 Rule 1(u)
confers limited power on the High Court to
examine only the legality and correctness
of the remand order of the first Appellate
Court but not beyond that. In other words,
the High Court should have seen that
Order 43 Rule 1(u) gives a limited power to
examine the issue relating to legality of
remand order, as is clear from Order 43
Rule 1(u) which reads thus:-

"1(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"

19. It is well settled law that the
jurisdiction to decide the appeal on merits
can be exercised by the Appellate Court
only when the appeal is filed under Section
96 or 100 of the Code against the decree.
Such was not the case here.

20.
In
the
light
of
abovementioned discussion, we are of the
opinion that the High Court had no
jurisdiction to consider much less deciding
the entire case of the parties on merits in
such appeal.

 21. We are also unable to agree
with the High Court when it held that the
first Appellate Court instead of remanding
the case to the Trial Court should have
heard the appeal on merits. This finding, in
our view, is bad in law for the reason that
firstly, it was not possible for the first
Appellate Court to have recorded the
evidence at the appellate stage.

29. In view of above, in the appeal
under Order- XLIII, Rule-1 (u) C.P.C., the
appellant is not entitled to agitate the
questions of facts and this Court has to
confine itself to such facts, conclusions and
decisions which have a bearing on the order
of remand and the said rule confers limited
power on the High Court to examine only
the legality and correctness of the remand
order of the first Appellate Court but not
beyond that. Therefore now the conclusions
for remand by the first appellate court will
be considered.

30. The first Appellate Court had
made five points of determination, which
are extracted here-in-below:-

"1. क्या प्रतिवातिनी सं०-3 श्रीमिी
उषा चौहान की मृत्यु के बाि उनके पति राज
कमल तसंह को वाि में प्रतिस्थातपि न तकये जाने
से मूल वाि की काययवाही िूतषि है?

2. क्या प्रतिवािी सं०-2 शुभांग चौहान
को तकसी संरक्षक के जररये पक्षकार न बनाने से
मूल वाि की काययवाही िूतषि है ?

3. क्या प्रतिवािी सं०-3/1 अतसि
चौहान को प्रतिस्थातपि तकये जाने के वाि उसे
जबाबिेही के तलए सम्मन न भेजे जाने के कारण
मूल वाि की काययवाही िूतषि हुई है?

4. क्या वाि प्रस्तुि करने की वातिनी
की अतिकाररिा के संबंि में व वाि सुनवाई की
िीवानी न्यायालय की अतिकाररिा के संबंि में व
यातचि अनुिोष के कालवातिि होने के संबंि में
तवतशष्ट वाि तबन्िु तवरतचि न तकये जाने से अवर
न्यायालय की वाि काययवाही िूतषि हुई ?

5. क्या तनणय के पूवय िीवानी प्रतकया
संतहिा के आिेश 14 तनयम 5 के िहि अवर
न्यायालय द्वारा वाि तबन्िु तवरतचि न तकये जाने
से और तनणय में ही वाि तबन्िु तवरतचि कर उस
1374 INDIAN LAW REPORTS ALLAHABAD SERIES
पर पक्षकारों को साक्ष्य का अवसर न तिये जाने
से अवर न्यायालय की वाि िूतषि हुई है ?"

31. While considering the 1st point of
determination, learned First Appellate
Court found that after death of Smt. Usha
Chauhan, the defendant no.3 in the suit, her
husband Ram Kamal Singh Chauhan was
also required to be substituted in view
Section 15 of the Hindu Succession Act
and
afforded
opportunity
to
defend,
according to which in pursuance of the will
in favour of Smt. Usha Chauhan, after her
death, her husband had also right in the said
property. The will was not set-aside till the
time of death of Smt. Usha Chauhan,
therefore the Trial Court had passed the
judgment and order without affording
opportunity to Raj Kamal Singh Chauhan,
who had right and title in the property in
dispute after death of Smt. Usha Chauhan
and before setting aside the will and the
same could not have been set aside without
affording the opportunity to him.

32. Section 15 of the Hindu
Succession Act- 1956 provides general
rules of succession in the case of female
Hindus. Sub section (1) (a) of Section 15
provides that the property of a female
Hindu dying intestate shall devolve upon
the sons and daughters and the husband,
which is extracted here-in-below:-

"15. General rules of succession
in the case of female Hindus.―(1) The
property of a female Hindu dying intestate
shall devolve according to the rules set out
in section 16,―

(a) firstly, upon the sons and
daughters (including the children of any
pre-deceased son or daughter) and the
husband;

-----------------------------------------
---------------------------------"

33. In view of above, the suit could
not
have
been
decided
without
impleadment of husband of Smt. Usha
Chauhan, the defendant no.3 and affording
opportunity to him. This Court is of the
view that the finding recorded by the first
Appellate Court does not suffer from any
illegality or error.

34. In regard to the 2nd point of
determination, learned Appellate Court has
found that while amending the suit for
claiming the relief of cancellation of sale
deed, the respondent no.1 was impleaded as
defendant no.2. At the time of his
impleadment he was minor, therefore he
should have been impleaded through
guardian.