JEGANNATHANversusRAJU SIGAMANI & ANR.

                    [2012] 3 S.C.R. 1003


                      JEGANNATHAN                                 A
                              v.
                   RAJU SIGAMANI & ANR.
           (Civil Appeal Nos. 3347-3348 of 2012)

                       APRIL 2, 2012
                                                                  B
         [R.M. LODHA AND H.L. GOKHALE, JJ.]

    Code of Civil Procedure, 1908:

      0. 43, r.1(u) rlw 0.41, r.23-A and s.100 - Miscellaneous    c
civil appeal filed before High Court against order of remand
passed in a first appeal under 0.41 - Held: Is maintainable
- Order of remand passed under 0. 41, r.23-A is amenable
to appeal under 0. 43, r. 1(u) - However, the constraints of
s. 100 continue to be attached to such an appeal - There is a
                                                                  0
difference between maintainability of an appeal and the scope
of hearing of an appeal - Order of High Court holding the civil
miscellaneous appeal as not maintainable set aside.

      The appellant-plaintiff No. 2 along with two others
filed a suit against the defendant-respondent No.1 for            E
declaration and permanent-mandatory injunction. The
suit was decreed for permanent injunction. On
respondent No. 1 filing a first appeal, the judgment of the
trial court was set-aside and the suit was remanded back
to the trial court for decision afresh on merits. The civil       F
miscellaneous appeal filed by the appellant and
respondent No. 2 under 0. 43, r. 1(u) of the Code of Civil
Procedure 1908 was held by High Court as not
maintainable. The review petition was also dismissed.
                                                                  G
    Allowing the appeals, the Court

    HELD: 1.1. Order 41 of the Code of Civil Procedure,
1908 provides for appeals from original decrees. The
Code empowers the appellate court to order remand in
                            1003                                  H
    1004   SUPREME COURT REPORTS               [2012] 3 S.C.R.


A three situations. These three situations are covered by 0.
  41, r. 23, 0. 41, r. 23A and 0. 41 r. 25. [para 9] [1006-E]

        1.2. In the instant case, the trial court had disposed
   of the suit on merits and not on a preliminary issue. The
   first appellate court set aside the judgment and decree
8
   of the trial court and directed it to decide the suit afresh
  ·after giving parties an opportunity to lead evidence - oral
   as well as documentary. The nature of the order passed
   by the appellate court leaves no manner of doubt that
   such order has been passed by it in exercise of its power
C under O. 41, r. 23A of the Code. [para 13) [1008-0-E]

       1.3. Clause (u) of r.1 of 0.43 was amended
  consequent upon insertion of r.23A in 0. 41 w.e.f.
  1.2.1977. It is clear from the above provision that an order
D of remand passed under 0. 41 r. 23A is amenable to
  appeal underO. 43, r.1 (u) of the Code. [para 14-15) [1008-
  F; 1009-A]

       1.4. The constraints of s.100 continue to be attached
E to an appeal under 0. 43, r.1 (u). The appeal under 0. 43,
  r.1(u) can only be heard on the grounds a second appeal
  is heard u/s 100. There is a difference between
  maintainability of an appeal and the scope of hearing of
  an appeal. The High Court failed to keep in view this
  distinction and wrongly applied the case of Narayanan
F in holding that miscellaneous appeal preferred by the
  appellant was not maintainable. The order of the High
  Court is set aside. The C.M.A. No. 1227 of 2002 is restored
  to the file of the High Court, for hearing and dispos al in
  accordance with law. [para 15,17 and 18] [1009-C-F]
G
        Narayanan Vs. Kumaran & Ors. 2004 (3)SCR 11 =
    (2004) 4 sec 26- explained.
                        Case Law Reference:
H       2004 (3) SCR 11           explained           para 15
     JEGANNATHAN v. RAJU SIGAMANI & ANR.                     1005


    CIVIL APPELLATE JURISDICTION : Civil Appeal No.                   A
3347-3348 of 2012.

     From the Judgment & Order dated 26.09.2008 of the High
Court of Madurai Bench of Madras High Court in C.M.A. No.
1227 of 2002 and order dated 12.11.2009 in Review                     8
Application No. 67 of 2009 in C.M.A. No. 1227 of 2002.

     V. Mohana for the Appellant.

     S. Aravindh, Senthil Jagadeesan for the Respondents.
                                                                      c
     The Judgment of the Court was delivered by

     R.M. LODHA, J.
     Delay condoned.
                                                                      D
     1. Leave granted.

     2. The appellant herein is plaintiff No. 2. He, along with two
others, namely, Gnanasoundari and George filed a Suit against
the present respondent No.1 for declaration, permanent
injunction and mandatory injunction.                                  E

    3. The respondent No. 1 contested the Suit on diverse
grounds.

      4. After recording evidence and on hearing the parties, the
                                                                      F
trial Court on September 16, 1999 decreed plaintiffs' Suit for
the grant of permanent injunction.

     5. Aggrieved by the judgment and decree dated
September 16, 1999, the respondent No.1 preferred first
appeal which came up for hearing before the Subordinate               G
Judge, Tiruchirapalli. On hearing the parties, the first appellate
Court, allowed the appeal, set aside the judgment of the trial
Court and remanded the Suit back to the trial Court with a
direction to give an opportunity to both the parties to let in
                                                                      H
    1006    SUPREME COURT REPORTS                    [2012] 3 S.C.R.


A   evidence -oral and documentary- and then decide the Suit
    afresh on merits.

         6. The order of remand dated April 8, 2002 was
    challenged by the present appellant and present respondent
    No. 2 by filing a Miscellaneous Appeal before the High Court
8
    under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908
    (for short 'the Code').

      7. The High Court, by its order dated 26th September,
  2008, held that the Civil Miscellaneous Appeal was not
C maintainable and dismissed the appeal on that ground.

          8. The appellant and the respondent No. 2 then filed a
    petition before the High Court seeking review of the order dated
    September 26, 2008. However, the Review Petition was also
0   dismissed on November 12, 2009. It is from these two orders
    that the present appeal has arisen.

      9. Order 41 of the Code provides for appeals from original
  decrees. The Code empowers the appellate Court to order
  remand in three situations. These three situations are covered
E by Order 41 Rule 23, Order 41 Rule 23A and Order 41 Rule
  25 which read as under:

        23. Remand of case by Appellate Court -

        Where the Court from whose decree an appeal is preferred
F
        has disposed of the suit upon a preliminary point and the
        decree is reversed in appeal, the Appellate Court may, if
        it thinks fit, by order remand the case, and may further
        direct what issue or issues shall be tried in the case so
        remanded, and shall send a copy of its judgment and order
G       to the Court from whose decree the appeal is preferred,
        which directions to re-admit the suit under its original
        number in the register of civil suits, and proceed to
        determine the suit; and the evidence (if any) recorded
        during the original trial shall, subject to all just exceptions,
H       be evidence during the trial after remand.
      JEGANNATHAN v. RAJU SIGAMANI & ANR.                     1007
                [R.M. LODHA, J.]

     23A. Remand in other cases -                                      A
     Where the Court from whose decree an appeal is preferred
     has disposed of the case otherwise than on a preliminary
     point, and the decree is reversed in appeal and a retrial
     is considered necessary, the Appellate Court shall have
                                                                       8
     the same powers as it has under rule 23.

     25. Where Appellate Court may frame issues and refer
     them for trial to court whose decree appealed from -

     Where the court from whose decree the appeal is                   C
     preferred has omitted to frame or try any issue, or to
     determine any question of fact, which appears to the
     Appellate Court essential to the right decision of the suit
     upon the merits, the Appellate Court may, if necessary,
     frame issues, and refer the same for trial to the court from
     whose decree the appeal is preferred and in such case             D
     shall direct such court to take the additional evidence
     required; and such court shall proceed to try such issues,
     and shall return the evidence to the Appellate Court
     together with its findings \hereon and the reasons there for
     within such time as may be fixed by the Appellate Court           E
     or extended by it from time to time.
     10. Order 41 Rule 23 is invocable by the appellate Court
where the appeal has arisen from the decree passed on a
preliminary point. In other words, where the entire suit has been
                                                                       F
disposed of by the trial Court on a preliminary point and such
decree is reversed in appeal and the appellate Court thinks
proper to remand the case for fresh disposal. While doing so,
the appellate Court may issue further direction for trial of certain
issues.
                                                                       G
     11. Order 41 Rule 23A has been inserted in the Code by
Act No. 104 of 1976 w.e.f. February 1, 1977. According to
Order 41 Rule 23A of the Code, the appellate Court may
remand the suit to the triat Court even though such suit has been
disposed of on merits. It provides that where the trial Court has      H
    1008    SUPREME COURT REPORTS                  [2012] 3 S.C.R.


A disposed of the Suit on merits and the decree is reversed in
  appeal and the appellate Court considers that retrial is
  necessary, the appellate Court may remand the suit to the trial
  Court.

        12. Insofar as Order 41 Rule 25 of the Code is concerned,
8
  the appellate Court continues to be in seisin of the matter; it
  calls upon the trial Court to record the finding on some issue
  or issues and send that finding to the appellate Court. The power
  under Order 41 Rule 25 is invoked by the appellate Court where
  it holds that the trial Court that passed the decree omitted to
C frame or try any issue or determine any question of fact
  essential to decide the matter finally. The appeilate Court while
  remitting some issue or issues, may direct the trial Court to take
  additional evidence on such issue/s.

0       13. Insofar as the present case is concerned, the trial Court
  had disposed of the suit on merits and not on a preliminary
  issue. The first appellate Court set aside the judgment and
  decree of the trial Court and directed the trial Court to decide
  the suit afresh after giving pa,rties an opportunity to lead
E evidence - oral as well as documentary. The nature of the order
  passed by the appellate Court leaves no manner of doubt that
  such order has been passed by the appellate Court in exercise
  of its power under Order 41 Rule 23A of the Code.

        14. Order 43 of the Code provides for appeals from
F   orders. Clause (u) of Rule 1 Order 43 was amended
    consequent upon insertion of Rule 23A in Order 41 w.e.f.
    February 1, 1977. It reads as under:
              An appeal shall lie from the following orders under
        the provisions of Section 104, namely:-
G
        xxxxx
        (u) an order under rule 23 or rule 23A of Order XLI
        remanding a case, where an appeal would lie from the
        decree of the Appellate Court;
H
       JEGANNATHAN v. RAJU SIGAMANI & ANR.               1009
                 [R.M. LODHA, J.]

       xxxxx                                                      A

    15. It is clear from the above provision that an order of
remand passed under Order 41 Rule 23A is amenable to
appeal under Order 43 Rule 1 (u) of the Code.

     The High Court relied upon a decision of this Court in the   8
case Narayanan Vs. Kumaran & Ors. (2004) 4 SCC 26 in
holding that Civil Miscellaneous Appeal from the order of
remand was not maintainable. The High Court was clearly in
error. What has been held by this Court in Narayanan is that
an appeal under Order 43 Rule 1 Clause (u) should be heard        C
only on the ground enumerated in Section 100 of the Code. In
other words, the constraints of Section 100 continue to be
attached to an appeal under Order 43 Rule 1(u). The appeal
under Order 43 Rule 1(u) can only be heard on the grounds a
second appeal is heard under Section 100. There is a              D
difference between maintainability of an appeal and the scope
of hearing of an appeal. The High Court failed to keep in view
this distinction and wrongly applied the case of Narayanan in
holding that miscellaneous appeal preferred by the appellant
was not maintainable.                                             E

       16. The appeals are accordingly allowed.

       17. The impugned order of the High Court is set aside.

     18. The C.M.A. No. 1227 of 2002 titled as Jagannathan        F
and Others Vs. Raju Sigamani is restored to the file of the
Madras High Court, Madurai Bench for hearing and disposal
in accordance with law.

       No order as to costs.
                                                                  G
R.P.                                         Appeals allowed.