Case Note & Summary
The appellant, Subhash Moralwar, filed a suit for specific performance of contract against the respondents, Vilas Wankhede and others, in the trial court. The trial court dismissed the suit. The appellant appealed to the lower appellate court (Adhoc District Judge-2, Nanded), which set aside the trial court's judgment and remanded the matter back to the trial court for fresh decision. The appellant then filed the present appeal from order before the Bombay High Court. The High Court examined the impugned order and found that the lower appellate court had not recorded any finding that the trial court's judgment was not in accordance with law or that the suit was disposed of on a preliminary point. The High Court held that the appellate court's power to remand under Order XLI Rule 23 or 23A of the Code of Civil Procedure, 1908, is limited and cannot be exercised without satisfying the conditions therein. The appellate court should have decided the appeal on merits. Consequently, the High Court allowed the appeal, set aside the remand order, and directed the lower appellate court to decide the appeal on merits in accordance with law.
Headnote
A) Civil Procedure - Remand - Order XLI Rule 23 and 23A CPC - Appellate Court's Power - The lower appellate court set aside the trial court's decree and remanded the suit for fresh decision without recording any finding that the trial court's judgment was not in accordance with law or that the suit was disposed of on a preliminary point - Held that the appellate court must decide the appeal on merits and cannot remand the case unless the conditions of Order XLI Rule 23 or 23A are satisfied (Paras 5-10). B) Specific Performance - Suit for Specific Performance - Burden of Proof - The plaintiff must prove readiness and willingness to perform his part of the contract - The trial court had dismissed the suit for specific performance, and the appellate court remanded the matter - Held that the appellate court should have decided the appeal on merits instead of remanding (Paras 3-4).
Issue of Consideration
Whether the lower appellate court was justified in remanding the matter to the trial court under Order XLI Rule 23 or 23A of the Code of Civil Procedure, 1908, without deciding the appeal on merits.
Final Decision
The High Court allowed the appeal, set aside the impugned judgment and order dated 15th February, 2012 passed by the Adhoc District Judge-2, Nanded in Regular Civil Appeal No. 358 of 2001, and directed the lower appellate court to decide the appeal on merits in accordance with law, without being influenced by any observations made in the impugned order.
Law Points
- Order XLI Rule 23 CPC
- Order XLI Rule 23A CPC
- Order XLI Rule 25 CPC
- Remand
- Specific Performance
- Appellate Court's Power
