The Supreme Court in the case Arvind Kumar Jaiswal (D) vs Devendra Prasad Jaiswal Varun observed that an order of remand prolongs and delays the litigation, the court set aside the order passed by the High Court wherein remanding a case to the trial court.
In the present case, the Patna High Court passed an order of remand wherein the court observed that the judgement of the trial court was not written as per the mandate of Section 33 and Rule 4(2) and 5 of Order XX of the Code of Civil Procedure, 1908 as the reasoning and discussion on certain aspects was not elaborate and detailed.
The Apex Court bench comprising of Justice Sanjiv Khanna and Justice M M Sundresh in the case observed that the High Court overlooked the provisions of Rule 23, 23A, 24 and Rule 25 of Order XLI of the Code of Civil Procedure, 1908.
The court allowed the appeal against the said order.
In its order, the court stated that in an order of remand prolongs and delays the litigation and hence, it should not be passed unless the appellate court finds that a re-trial is required, or the evidence on record is not being sufficient for disclosing of the matters for reasons like lack of adequate opportunity of leading evidence to a party, where there had been no real trial of the dispute or there is no complete or effectual adjudication of the proceeding, therefore the party complaining has suffered material prejudice on that account.
Further, the court stated that where the evidence has already been adduced and a decision can be rendered on appreciation of such evidence, an order of remand should not be passed wherein remitting the matter to the lower court, even if the lower court has omitted to frame issue(s) and/or has failed for determining any question of fact, which being of the opinion of the appellate court, is essential. Thus, if required the first appellate court can also direct the trial court to record evidence and finding on a particular aspect or issue in terms of Rule 25 to Order XLI, which then can be taken on record for deciding of the present case by the appellate court.
It has also been noted by the court that it being not a case where the evidence is not adduced and on record and that the judgment of the High Court elaborately records the contentions made by the parties and the facts and evidence relied by the parties.
Accordingly, the court restored the first appeal before the High Court.
