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Jegannathan v. Raju Sigamani And Another
Factual and Procedural Background
The appellant (Plaintiff 2) along with co-plaintiffs Gnanasoundari and George filed a suit against Respondent 1 seeking a declaration, permanent injunction, and mandatory injunction. On 16-9-1999 the trial court decreed the suit in their favour by granting a permanent injunction.
Respondent 1 filed a first appeal before the Subordinate Judge, Tiruchirapalli. On 8-4-2002, the appellate court allowed the appeal, set aside the trial court’s decree, and remanded the case to the trial court with directions to afford both parties an opportunity to adduce further oral and documentary evidence and to decide the suit afresh.
The appellant and Respondent 2 challenged the remand order by filing CMA No. 1227 of 2002 in the Madras High Court under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 (CPC). On 26-9-2008, the High Court dismissed the appeal as “not maintainable.” A subsequent review petition met the same fate on 12-11-2009. The present Supreme Court appeal arises from those two High Court orders.
Legal Issues Presented
- Whether an order of remand passed by a first appellate court under Order 41 Rule 23-A CPC is appealable under Order 43 Rule 1(u) CPC.
- Whether the High Court erred in dismissing the civil miscellaneous appeal for non-maintainability by misapplying the Supreme Court decision in Narayanan v. Kumaran (2004) 4 SCC 26.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Narayanan v. Kumaran (2004) 4 SCC 26 | An appeal under Order 43 Rule 1(u) CPC is to be heard only on the grounds permissible under Section 100 CPC (i.e., substantial questions of law). | The Supreme Court clarified that Narayanan restricts the scope of hearing but does not affect the maintainability of such an appeal. The High Court’s reliance on this case to dismiss the appeal as non-maintainable was therefore misplaced. |
Court's Reasoning and Analysis
The Supreme Court first outlined the three statutory bases for remand under the CPC—Order 41 Rules 23, 23-A, and 25—and explained their distinct scopes. Observing that the trial court had decided the suit on merits (not on a preliminary point), the Court held that the appellate remand fell squarely under Rule 23-A.
Under Order 43 Rule 1(u) CPC, an order of remand under Rule 23-A is expressly appealable. The High Court, however, had conflated the “maintainability” of such an appeal with the “scope” of its hearing. Citing Narayanan v. Kumaran, the Supreme Court noted that while appeals under Rule 1(u) must indeed conform to the constraints of Section 100 (substantial questions of law), that decision does not render such appeals non-maintainable.
Consequently, the High Court’s dismissal of the civil miscellaneous appeal for want of maintainability was found to be legally erroneous.
Holding and Implications
Holding: The appeals are allowed; the High Court’s orders dated 26-9-2008 and 12-11-2009 are set aside. CMA No. 1227 of 2002 (Jegannathan v. Raju Sigamani) is restored to the Madras High Court, Madurai Bench, for fresh hearing and disposal in accordance with law.
Implications: The decision reaffirms that remand orders issued under Order 41 Rule 23-A are appealable under Order 43 Rule 1(u), though such appeals remain confined to substantial questions of law under Section 100 CPC. The matter now returns to the High Court for adjudication on that limited footing; no new precedent is set beyond clarifying the correct interpretation of Narayanan v. Kumaran.
R.M Lodha, J.— Delay condoned. Leave granted.
2. The appellant herein is Plaintiff 2. He, along with two others, namely, Gnanasoundari and George filed a suit against the present Respondent 1 for declaration, permanent injunction and mandatory injunction. Respondent 1 contested the suit on diverse grounds. After recording the evidence and on hearing the parties, the trial court on 16-9-1999 decreed the plaintiffs' suit for the grant of permanent injunction.
3. Aggrieved by the judgment and decree dated 16-9-1999, Respondent 1 preferred first appeal which came up for hearing before the Subordinate 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.
4. The order of remand dated 8-4-2002 was challenged by the present appellant and present Respondent 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 26-9-2008 (2008) 4 LW 1008 (Mad), held that the civil miscellaneous appeal was not maintainable and dismissed the appeal on that ground. The appellant and Respondent 2 then filed a petition before the High Court seeking review of the order dated 26-9-2008 (2008) 4 LW 1008 (Mad). However, the review petition was also dismissed on 12-11-2009. It is from these two orders that the present appeal has arisen.
5. 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 Rule 23-A 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, with directions to readmit 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.
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.”
6. 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.
7. Order 41 Rule 23-A has been inserted in the Code by Act 104 of 1976 w.e.f 1-2-1977. According to Order 41 Rule 23-A 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.
8. 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 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).
9. 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 23-A of the Code.
10. Order 43 of the Code provides for appeals from orders. Clause (u) of Rule 1 Order 43 was amended consequent upon insertion of Rule 23-A in Order 41 w.e.f 1-2-1977. It reads as under:
“1. Appeals from orders.—An appeal shall lie from the following orders under the provisions of Section 104, namely—
(u) an order under Rule 23 or Rule 23-A of Order 41 remanding a case, where an appeal would lie from the decree of the appellate court;”
It is clear from the above provision that an order of remand passed under Order 41 Rule 23-A is amenable to appeal under Order 43 Rule 1(u) of the Code.
11. The High Court relied upon a decision of this Court in Narayanan v. Kumaran (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 (2004) 4 SCC 26 is that an appeal under Order 43 Rule 1(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.
12. 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 (2004) 4 SCC 26 in holding that miscellaneous appeal preferred by the appellant was not maintainable.
13. The appeals are accordingly allowed. The impugned order of the High Court is set aside. CMA No. 1227 of 2002 titled Jegannathan v. 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.
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