Scope and Utility of Procedure of Remand- An Analysis

 

Muhammad Riyazul Ameen Memon

Final Year Student, Hidayatullah National Law University, Raipur

 

Remand means to send back[i]. Where the trial court has decided the suit on a preliminary point without recording findings on other issues and if the appellate court reverses the decree so passed, it may send back the case to the trial court to decide other issues and determine the suit[ii]. This is called remand.

 

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.

 

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.[iii]

 

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. A remand cannot be ordered lightly. It can be ordered only if the following conditions are satisfied:

 

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 a 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[iv].

 

Such preliminary point may be one of fact or law, but the decision thereon must have avoided the necessity for a full hearing of the suit. Thus where the lower court dismisses the suit as being time barred; or barred by limitation; or res judicata; or as disclosing no cause of action; it does so on a preliminary point of law. On the other hand, where the lower court dismisses the suit on the ground that the plaintiff is estopped from proving his case; or that it was motivated; or that the plea raised at the hearing was different from that raised in the plaint, it does so on a preliminary point of fact.

 

The decree under appeal must have been reversed-[v] No remand can be ordered by the appellate court under Rule 23 unless the decision of the lower court on the preliminary point is reversed in appeal[vi]. Where such is not the case, the appellate court cannot order remand simply because the judgment of the lower court is not satisfactory; or that the lower court had misconceived or misread the evidence; or had ignored the important evidence; or had acted contrary to law; or that the materials on which the conclusions are reached are scanty; and the appellate court must decide the appeal in accordance with law.

 

Remanding of a case though is discretion of the appellate court, but this discretion has very strict parameters. As a general rule, if appellate court can do complete justice on the basis of the record before it, the appellate court must not remand the case as it will entail more time and money of the litigants[vii]. A remand order may be proper in the cases of irregular, illegal or defective proceedings before the lower court and where the points of essence or vital have been ignored or not touched upon. A remand order should be carefully passed. Appellate Court should decide matters finally instead of remanding the cases, unless there is a chance of miscarriage of justice. In the event that oral and documentary evidence is already on record and the parties had satisfactorily availed the opportunity of leading evidence, the case must be decided by the appellate court and should not be remanded[viii]. Where evidence on record though was sufficient for appellate court to decide the matter itself, remand could not be ordered and discretionary power was to be used only in exceptional situation[ix]. Only those cases could be remanded which could not be decided on the basis of available material on record. If controversy could be resolved on the basis of available evidence, then the question of remand would not arise[x]. If a case is remanded allowing a new plea the whole case is not opened. The lower court or trial court will only determine the new plea and in determination of new plea(s) the affected previous findings will be ignored[xi]. Where an amendment in pleadings is of essence for settling the controversy and the amendment sought for is denied by the trial court, it is not a “proper trial” likewise non-framing of an essential issue, makes it mandatory on the appellate court to frame the issue itself and/or remand the case. No case can be remanded enabling a party to produce additional evidence unless proper opportunity was not afforded or denied to such party to lead evidence[xii]. Rule-23 of Order-XLI (41) CPC envisages remand of a case which is “decreed” i.e. disposal of the entire suit including dismissal on “preliminary point” whether of fact or law[xiii] Rule-25 of Order-XLI CPC deals with the cases where the trial court has disposed of the case not on a preliminary point but having omitted to try any material issue i.e. an issue without which suit could not have been decided on merits. The basic difference in application of Rule-23 and Rule-25 of Order-XLI CPC is as follows:-

 

i) Upon remand under Rule-23, the whole case goes back for trial, the appeal gets disposed off, case/suit is readmitted under its original number in the register of civil suits, but upon remand under Rule-25, the matter is sent back to the lower court, only for purpose of recording evidence or giving a finding on an issue and the appeal remains pending before the appellate court.

 

ii) Upon remand under Rule-23, the order of the appellate court is final, but upon remand under Rule-25, the order of the appellate court is interlocutory and the appeal is finally disposed of in terms of Rule-26.

 

iii) A remand is ordered under Rule-23 where the decision is on a preliminary point whilst it is made under Rule- 25 when the entire case has been decided.

 

It is illegal on the part of appellate court to remand a case on such terms or directions as to provide opportunity to the opposite party to fill gaps in evidence[xiv]. The appellate court is competent to resettle the issues and dispose of the case on the basis of evidence on record[xv]. Remand of case to court or tribunal for disposal on merits, reopens the entire case before such statutory functionary[xvi]. Remand of case in writ petition for disposal according to law means reopening of entire case [xvii]. Remand if not possible under Rule-23 and Rule-25 of OrderXLI CPC, court can remand case in exercise of inherent powers to meet ends of justice and abuse of process of court[xviii]. Once both parties lead evidence, question of onus loses importance. A case cannot be remanded on the simple ground that the onus of proving certain fact was on the other party[xix]. Left out issues taken up by the appellate court, if no prejudice is to be caused to either party, it is not necessary to remand the case[xx]. Under Order-XLI, one set of rules relates to remand of a case as a whole, the other contemplates remand on the ground of failure to try and frame any issue. On comparison of the two provisions, it appears that in a case where a decree is reversed in appeal, the appellate court may remand the case itself and the trial court would have full powers of considering the entire case afresh.  Under Rule- 25, the appellate court has power of framing an issue and referring the same for trial and the trial court would after recording evidence on such issue, return the case to appellate court[xxi].  If no finding is given by court in remand order on any of the issues, such issue would not attain finality and could be reagitated before reversional court[xxii]. Lower appellate court not recording any finding on the issue decided in favour of defendant, the order of remand is illegal[xxiii].                    

 

CONCLUSION:

The judiciary has widened the scope of remand greatly by stating that appellate courts should remand a case in the interests of justice if the case is not covered by the relevant provisions in the Code of Civil Procedure. Such judicial decisions have given rise to the concept of Inherent Power of Remand  and Courts issuing orders of remand under Section 151 of the Code of Civil Procedure which violates the principles of law as usually courts cannot take recourse to their inherent powers in respect of a subject which has specific statutory provisions governing it.

 

Thus in light of this extremely wide scope of remand courts must be extremely cautious and careful while remanding a case. The interests of justice will be defeated if appellate courts start using the power of remand loosely and indiscriminately without application of mind. The court must order a remand only after appreciating the facts and circumstances in each case and after satisfying its self to the hilt that a remand is imperative and absolutely necessary in order to better serve the interests of justice. If these guidelines are not followed it will result in denial of justice and unnecessary and prolonged delays.

    

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