MUNICIPAL CORPORATION, HYDERABAD v. SUNDER SINGH

Citation: [2008] 9 S.C.R. 635

Court: Supreme Court of India

Bench: S.B. SINHA, LOKESHWAR SINGH PANTA

Case summary

MUNICIPAL CORPORATION, HYDERABAD v. SUNDER SINGH.pdf

Judgment text

(2008] 9 S. C. R. 635 ). MUNICIPAL CORPORATION, HYDERABAD v. SUNDER SINGH (Civil Appeal No. 3627 of 2008) MAY 16, 2008 [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 - 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. . ' - • tion and a direction upon the respondent - Corporation to render accounts for the amounts realized by wrongful auction. Admittedly, an interlocul litigation and the decree passed in O. S. 7/59 and the same being set aside under Ex. B-1 by the High Court.

According to him Nizam Government took away his property from his ancestrals somewhere in 1940's subsequently the property was released. It is pertinent to mention that he did not file any documents. " 18. Noticing that neither the original plaintiff nor the respondents who were substituted in place of Devi Singh had not ,. amended the plaint in the previous suit, it was held that the evidence on either side is very meagre in the said suit. The said suit was held to be barred under Order II Rule 2 stating that the plaintiff ought to have prayed for the declaration in the previous suit itself. 19. A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The ... scope of remand in terms of Order XU Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order XU Rule 23 was therefore not available. On what basis, the SUNDER SINGH [S. 8. SINHA, J. ] secondary evidence was allowed to be led is not clear.

The High Court did not set aside the orders refusing to adduce secondary evidence. 20. Order XLI rule 23A of the Code of Civil Procedure is also not attracted. The High Court had not arrived at a finding 8 that a re-trial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order XLI Rule 23 of the Code. An order of remand cannot be passed on ipse dixit of the court. The provisions of Order 11 Rule 2 of the Code of Civil Procedure as also Section 11 thereof could be invoked, provided of course the conditions precedent therefor were satisfied. We may not have to deal with the legal position obtaining in this behalf as the question has recently been dealt with by this Court 0 in Dadu Oaya/u Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas & anr. (Civil Appeal No. 3495 of 2008) disposed of on 12. 5. 2008. 21.

We are, therefore, of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly and the matter is remanded back to the High Court for consideration of the appeal on merits. The appeal is allowed with the aforesaid directions. In the facts and circumstances of the case, however, there shall be no order as to costs. B. 8. 8. Appeal allowed.