J. BALAJI SINGH versus DIWAKAR COLE & ORS.

Citation: [2017] 3 S.C.R. 555 · Decided: 24-04-2017 · Supreme Court of India · Bench: R.K. AGRAWAL · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[20 l 7] 3 S.C.R. 555 
J. BALAJI SINGH 
v. 
DIWAKAR COLE & ORS. 
(Civil Appeal No. 5540 of20 I 7) 
APRIL 24, 2017 
[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.] · 
Code of Civil Procedure, 1908 - 01:41, rr.27, 23, 23-A, 25 
and 01:43, r. J (u) - Jurisdictio11al error - Appellant filed suit against 
the respondents for declaration of title and permanent injunction 
over the suit property - Suit dismissed by trial court - Aggrieved 
appellant filed appeal before the first Appellate court and also filed 
an application u/Or.41,r.27,to file additional evidence 
(documents) - Both appeal and applicatio11 u/01:41, r.27 allowed 
by first Appellate court and matter remanded back to trial court to 
decide the suit aji·esh on 111erits - Howeve1; High Court exa111ined 
the case on merits and set aside the judgment of first Appellate 
court and furthe1; dis111issed the suit by restoring the judg111e11t/decree 
of trial court - 011 appeal, held: Once the first Appellate court 
allowed the application u/Or.41, r.27 and took on record the 
additional documents, it rightly set aside the judgment/decree of 
trial court a11d enabled it to decide the suit afresh in light of entire 
evidence - First Appellate court was justified in taki11g recourse to 
power conferred u/01:41, r.23-A for rema11ding case back to trial 
court - High Court co1i1111ilted jurisdictional error by again 
examining the case on merits and setting aside the judgment of the 
first Appellate court and restoring the judgment of trial court -
High Court. was to only exaoiine legality of the remand order in 
appeal u/Or. 43. 1: 1 (u) - It. could only have remande'd the case to the 
first Appellate court with direction to decide the first appeal on 
merits - High Court had no jurisdiction to decide the case on 
merits - Jurisdictio11. 
' 
Allowing the appeal, the Court 
HELD: I. Once. the first Appellate Court allowed the 
application under Order 41 Rule 27 of CPC and took on record 
the additional evidence, it rightly set aside the judgment/decree 
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of the Trial Court giving liberty to the parties to lead additional · H 
555 
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556 
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SUPREME COURT REPORTS 
[2017] 3 S.C.R. 
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. 
There is no fault in exercise of such power by the first Appellate 
Court. [Para 21)(561-C-D] 
2. The only error which the first Appellate Court committed 
was that it went on to record the findings on merits. 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.[Para 22)(561-E-J<'] 
3. In so far as the impugned order is concerned, the High 
Court 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, 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 l(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 direction to decide the first appeal on merits.[Para 
23] [561-G:H] 
4. The High Court failed to see that when the first 
Appellate Court itself did nn~ d_ecide 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 l(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. [Para 24] [562-A-B] 
5. It is well settled law that the jurisdiction to decide the 
appeal on merits can be exercised by the Appellate
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