LexMUNICIPAL CORPORATION, HYDERABAD versus SUNDER SINGH
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_.. . ' (2008] 9 S.C.R. 635 ). MUNICIPAL CORPORATION, HYDERABAD A v. SUNDER SINGH (Civil Appeal No.3627 of 2008) MAY 16, 2008 B [S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.) ~ Code of Civil Procedure. 1908 - Or.41, r. 23 - Remand by Appellate Court - Scope of - Held: Is extremely limited - Order of remand cannot be passed on ipse dixit of the Court - c Or.41, r.23 is invoked when a decree has been passed on a preliminary issue and the Appellate Court disagrees with the findings of Trial Court on the said issue - Power thereunder not to be exercised by Appellate Court only because it finds it difficult to deal with the entire matter. D -<i Respondent filed suit seeking grant of permanent in- junction in respect of property and a direction upon the Appellant-Corporation to render accounts for the amounts realized by wrongful auction of the said property. An in- terlocutory application was filed therein for adducing sec- E ondary evidence of documents. The application was dis- missed. Thereafter, the said suit was also dismissed, ap- peal whereagainst was filed. The High Court allowed the y appeal and remanded the matter back to Trial Court. Hence the present appeal. F Allowing the appeal and remanding the matter back to High Court for consideration of the· appeal on merits, the Court HELD:1.1. Or. XLI, r.23 of CPC would be applicable G when a decree has been passed on a preliminary issue . ., The Appellate Court must disagree with the findings of the Trial Court on the said issue. Before invoking the said provision, the conditions precedent laid down therein 635 H 636 SUPREME COURT REPORTS [2008] 9 S.C.R. - A must be satisfied. [Paras 10, 11] [642-8,C,D] ~ 1.2 The Court should loathe to exercise its power in .,. terms of Or. XLI, r.23, CPC and an order of remand should not be passed routinely. It is not to be exercised by the I appellate court only because it finds it difficult to deal with k B the entire matter. If it does not agree with the decision of the Trial Court, it has to come with a proper finding of its own. The Appellate Court cannot shirk its duties. [Para .. 11] [642-D,E] c 1.3. The scope of remand in terms of Or.XLI, r.23 is extremely limited. In the present case, the suit was not decided on a preliminary issue. Or. XLI, r.23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set D aside the orders refusing to adduce secondary evidence. Or. XLI. r.23A of CPC is also not attracted. The High Court had not arrived at a finding that a re-trial was necessary. ,.. ·• . The High Court again has not arrived at a finding that the i }~ decree is liable to be reversed. No case has been made E out for invoking the jurisdiction of the Court under Or. XLI, r.23 of CPC. An order of remand cannot be passed on ipse dixit of the Court. [Paras 19, 20] [650-G, 651-A,B,C] Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram .... Niwas & anr.(Civil Appeal No. 3495 of 2008) disposed of by F S.C. on 12-5-2008 - referred to. CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3627 of 2008 From the final Judgment and Order daterl 8.4.2004 of the G High Court of Judicature, Andhra Pradesh at Hyderabad in C.C.C.A. No. 64 of 1998 .I!! L.N. Rao, G. Ramakrishna Prasad, Suyodhan Byrapanor. 'y Siddarth Patnaik and G. Arun for the Appellant. H M.N. Rao, Promila, A. Ramesh and Anshuman for the Re- t " MUNICIPAL CORPORATION, HYDERABAD v. 637 SUNDER SINGH [S.B. SINHA, J.] spondents. A The Judgment of the Court was delivered by S.B. SINHA, J. 1. Leave granted. 2. This appeal is directed against a judgment and order B dated 8.4.2004 whereby and whereunder the High Court of Ju- dicature at Hyderabd set aside the judgment and order dated 24.4.1998 passed by the VII Senior Civil Judge, City Civil Court, Hyderabad in O.S. No. 573·of 1991 and remanded the matter back to the learned trial judge. c Devi Singh is the predecessoc-in-interest of the respon- dent. The original disp\jte between the parties centered round 1250 square yards of land purported to be situated in a market called 'Maidan Bazaar Jamerath' situate at Karvan Aspan ·and bounded on the east by cancft and police station, on the west by D . --.( 'Bakar Mandi, on the north by cement road, graveyard and huts belonging tO the plaintiff and on the south by land, huts and grave- yards belonging to the plaintiff. It wa
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