Remand
means to send back.
According
to Black’s Law Dictionary (7 Th .ed.p.1295) Remand means,
(1)
The act or an instance of sending something (such as a case, claim, or person) back for future action.
(2) An order remanding a case, claim or person.
Rule
23 of Order 41 of the Code of Civil Procedure enacts that where the trial court
has decided the suit on a preliminary point without recording findings on other
issues and the appellate authority reverses the decree so passed, it may send
back the case to the trial court to decide other issues and determine the suit.
This is called remand.
By
passing an order of remand, an appellate court directs the lower court to
reopen and retry the case. On remand, the trial court will readmit the suit
under its original number in the register of civil suits and will proceed to
determine it as per the directions issued by the appellate court.
Section
107 (1) (b) of the Code of Civil Procedure empowers an appellate court to remand
a case. Specifically, remand is dealt with in Order 41 Rules 23, 23A, and 25. It
can be ordered only if the following conditions are satisfied:
(1)
The suit must have been disposed of by
the trial court on a preliminary point- Before the court can exercise the
power of remand under Rule 23, it is necessary to show that the lower court has
disposed of the suit on a preliminary point. A point can be said to be the preliminary point if it is such that the decision thereon in a particular way
is sufficient to dispose of the whole suit, without the necessity for a
decision on the other points in the case. Such a preliminary point may be one of
fact or of law, but the decision thereon must have avoided the necessity for a full hearing of the suit.
(2)
The decree under appeal must have been
reversed- No remand can be ordered by the appellate court under this rule
unless the decision of the lower court on the preliminary point is reversed in
appeal.
(3) Necessary
in the Interest of Justice- Rule 23 A of Order 41, as inserted by the
Amendment Act of 1976 empowers the appellate court to remand a case even when a lower court has disposed of the case otherwise than on a preliminary point and
the remand is considered necessary by the appellate court in the interest of justice. The preliminary object of Rule 23 A is to widen the powers
of the appellate court to remand a case in the interests of justice.
A
remand order under Order 41, Rule 23, Civil Procedure Code, can be passed only
where the court, from whose decree an appeal is preferred, has disposed of the
suit upon a preliminary point and the decree is reversed by the appellate
court. An appeal against such an order of remand is specifically provided by
Order 43, Rule 1(u). Section 105 Sub-section (2), Civil Procedure Code further
provides that if any party aggrieved by an order of remand from which an appeal
lies do not appeal therefrom, he shall thereafter be precluded from disputing
its correctness.
A
certificate for the refund of court-fees can be granted under Section 13 of the
Court-fees Act only if an order of remand is made under Order 41, Rule 23,
Civil Procedure Code and not in any other case of remand.
It
is, therefore, clear that the first appellate court purported to remand the a case under Order 41, Rule 23, and the appellant had got a right of appeal
against that order.
An
order of remand reverses the decision of the lower court and reopens the case
for retrial by the lower court except in regard to the matters decided by the
appellate court. An order of remand is
appealable. If the party aggrieved by an order of remand does not appeal therefrom, he cannot subsequently question its correctness under the inherent powers
of the court under Section 151 of the Code. Once an order of remand is made by
a superior court, an inferior court has to decide the matter as per the
directions of the superior court. The
appellate court should not exercise the power of remand very lightly. As far as
possible it should dispose of the appeal finally unless remand is imperative.
-------------------
Dr.
Deepak Miglani, Email id.:- legalbuddy@gmail.com
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