Remand:
Remand of case to Revisionary Court – On facts, failure of the appellant-tenant to vacate possession of the suit premises to respondent-owner in terms of the compromise, led to filing of execution application by respondent – Objections raised by appellant – Executing court overruling all the objections, directed issuance of warrant of possession in respect of suit premises against the appellants – Filing of Revision by appellant – Revisionary Court remanded the matter to the Executing Court – In writ petition, the High Court set aside the order of the revisionary court and restored the order of the Executing Court – On appeal, held: Revisionary Court erred in remanding the case to the Executing Court for its fresh consideration on merits – Since the Executing Court had already decided all objections raised by the appellants on merits and had found no merit therein, the Revisionary Court was under legal obligation to decide the legality and correctness of the findings recorded by the Executing Court – Revisionary Court also erred in allowing the appellants to file additional documents, which were neither relevant and nor material for deciding the correctness of the order passed by the Executing Court – Furthermore, the High Court having noticed the errors in the order of the Revisionary Court should have remanded the case to the Revisionary Court for deciding the revision afresh on merits – Thus, case remanded to the Revisionary Court for deciding the revision afresh.
Remand of a case to Subordinate Court – When necessary – Held: Remand is necessary when the Superior Court while exercising its appellate or revisionary jurisdiction finds that the Subordinate Court has failed to decide some material issues arising in the case or there is some procedural lacuna noticed in the trial, which has adversely affected the rights of the parties or when some additional evidence is considered necessary to decide the rights which was not before the trial court.
Partly allowing the appeals, the Court
HELD: 1.1 The impugned order as also the order passed by the Revisionary Court are set aside. The case is remanded to the Revisionary Court for deciding the appellants revision afresh on merits in accordance with law. [Para 14, 28] [140-A-B; 142-C]
1.2 The Revisionary Court committed two errors. In the first place, it should not have remanded the case to the Executing Court for its fresh consideration on merits but it should have decided the revision on merits in accordance with law. It is for the reason that the Executing Court had already decided all objections raised by the defendants (appellants) on merits and had found no merit therein. The Revisionary Court was, therefore, under legal obligation to decide the legality and correctness of the findings recorded by the Executing Court on its merits in its revisionary jurisdiction instead of remanding the case to the Executing Court. Indeed, there is no justifiable reason, which could justify remand having regard to the nature of the objections raised by the defendants (appellants) before the Executing Court. This was not the case, which needed remand to the Executing Court for its fresh decision on merits. [Para 16, 17] [140-C-E]
1.3 The remand of a case to the Subordinate Court is considered necessary when the Superior Court while exercising its appellate or revisionary jurisdiction finds that the Subordinate Court has failed to decide some material issues arising in the case or there is some procedural lacuna noticed in the trial, which has adversely affected the rights of the parties while prosecuting the suit/proceedings or when some additional evidence is considered necessary to decide the rights of the parties which was not before the Trial Court etc. Such was not the case here. [Para 18][140-F-G]
1.4 The error committed by the Revisionary Court was that it allowed the defendants (revision petitioners) to file additional documents to prove their case. The documents sought to be filed by the defendants were neither relevant and nor material for deciding the legality and correctness of the order passed by the Executing Court. The legality and correctness of the order impugned in the revision could be decided one way or the other without the aid of any additional document but on the basis of material already on record. Indeed, if the Executing Court could decide the issue finally at its level, the Revisionary Court too could do the same at its level. [Para 20] [141-A-B]
1.5 As regards, the impugned order passed by the High Court, the Court having noticed the aforementioned errors in the order of the Revisionary Court should have remanded the case to the Revisionary Court for deciding the revision afresh on merits. Instead, the High Court itself went into the question on merits and upheld the order of the Executing Court. The High Court should not have done and left it for the Revisionary Court to do. It does not mean that the High Court had no jurisdiction to decide the issue but having regard to the nature of objections, remedy available to the parties to have finding on the question from the Revisionary Court and to put the record straight, it was not called for in this case. [Para 23, 24] [141-E-G]
Roshanlal v. Madan Lal AIR 1975 SC 2130
– referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.