The Bombay High Court has clarified that appellate courts cannot routinely remand civil suits for appointment of a Court Commissioner when they possess sufficient material to decide the matter on merits. This judgment reinforces the duty of appellate forums to avoid procedural delays and exercise their statutory powers under the Code of Civil Procedure to deliver final justice.
Background & Facts
The Dispute
The dispute centers on competing claims to shares of undivided joint family property originally belonging to Laxman Mehekarikar. On 21.05.1980, sons of Laxman transferred 59/80th share and daughters transferred 3/48th share via registered sale deeds to the defendants. The plaintiffs claimed to have purchased a 21/80th share from Manik Laxman Mehekarikar on 06.11.1987. The defendants contested this, asserting that Manik had no salable interest left after the prior alienations.
Procedural History
The case progressed through multiple stages:
- 2000: Original suit (R.C.S. No. 725 of 2000) filed for partition, separate possession, and mesne profits
- 2012: Trial Court dismissed the suit, holding plaintiffs failed to prove ownership
- 2012: Plaintiffs filed R.C.A. No. 626 of 2012 before the District Judge (Appellate Court)
- 2023: Appellate Court remanded the matter to the Trial Court for appointment of a Court Commissioner to measure and identify shares
- 2024 & 2023: Two appeals filed challenging the remand order - one by plaintiffs (AO 41/2024), one by defendants (AO 61/2023)
Relief Sought
The appellants sought quashing of the remand order and direct adjudication of the appeal on merits. They argued that the Appellate Court had adequate evidence, including Exhibit 211 (the measurement map prepared by the Court Commissioner in the Trial Court), to determine ownership without further remittal.
The Legal Issue
The central question was whether Order XLI Rule 24 and Rule 33 of the Code of Civil Procedure empower an Appellate Court to decide factual disputes on merits, even when measurement of property is required, or whether remand under Order XXVI Rule 10 is mandatory in such cases.
Arguments Presented
For the Appellant
Shri Devidas R. Shelke argued that the Appellate Court had all necessary evidence, including the map (Exhibit 211) already on record, and that remand was an avoidable delay. He relied on Jagannathan v. Raju Sigmani, Akshay Automobiles v. Union of India, and Municipal Corporation, Hyderabad v. Sunder Singh to establish that remand should be the exception, not the rule. He also cited Yasin Gula Shkalkar v. Maruti Nagnath Anware to affirm that Appellate Courts may appoint Commissioners directly under Order XXVI Rule 9.
For the Respondent
Mrs. Charuta S. Deshmukh contended that the Appellate Court was justified in remanding because the shares were not clearly demarcated and the Trial Court had already attempted measurement. She argued that the Appellate Court lacked technical expertise to interpret the map and that remand ensured procedural fairness. However, she conceded that no new evidence was available and that the Trial Court’s Commissioner had already submitted a report.
The Court's Analysis
The Court examined the scope of Order XLI Rule 24 and Rule 33, which empower Appellate Courts to take additional evidence, determine facts, and pass any decree or order necessary for justice. It held that remand under Order XXVI Rule 10 is not a default remedy when the factual record is complete.
"Just because there is an interest dispute regarding entitlement to the extent of respective shares, remanding the matter for resorting to Order XXVI Rule 10 of the C.P.C. is not the solution."
The Court emphasized that the Appellate Court had already received the Commissioner’s report (Exhibit 211) and that both parties had been heard fully. No new facts emerged post-trial. The Court distinguished remand as a tool for genuine gaps in evidence, not for judicial indecision. It noted that repeated remands violate the spirit of Section 148 of the CPC, which mandates expeditious disposal.
The Court further held that Order XXVI Rule 9 permits Appellate Courts to appoint Commissioners themselves, eliminating the need for remand. The precedent in Yasin Gula Shkalkar was affirmed as directly applicable. The Appellate Court’s failure to exercise its powers under Order XLI Rule 24 and 33 rendered the remand order legally unsustainable.
The Verdict
The appellants succeeded. The Bombay High Court quashed the remand order and directed the Appellate Court to decide the appeal on its merits within ten months. The Court held that appellate courts must exercise their powers under Order XLI Rules 24 and 33 to adjudicate disputes on merits, and remand is impermissible where the record is complete and no new evidence is required.
What This Means For Similar Cases
Remand Is Not a Default Remedy
- Practitioners must now challenge routine remands by citing Order XLI Rule 24 and 33 as mandatory tools for appellate adjudication
- Courts cannot defer factual determination to Trial Courts merely because property measurement is complex
- A previously appointed Commissioner’s report, if on record, suffices for appellate adjudication
Appellate Courts Can Appoint Commissioners Directly
- Under Order XXVI Rule 9, Appellate Courts may appoint Commissioners without remanding
- This avoids duplication of effort and reduces litigation time
- Advocates should move applications under Order XXVI Rule 9 at the appellate stage, not wait for remand
Procedural Efficiency Is a Legal Duty
- Delay caused by unnecessary remands violates the principle of audi alteram partem and the right to speedy justice under Article 21
- Courts must record reasons for remand - mere reference to "complexity" is insufficient
- Failure to apply Order XLI Rule 24 may render the order liable to be set aside on appeal
