The Bombay High Court has reaffirmed that appellate courts must exercise restraint in ordering remands, emphasizing that procedural omissions like non-framing of an issue cannot justify a de novo trial when evidence is already on record. This judgment clarifies the limits of judicial discretion under Order XLI of the CPC and reinforces the principle that justice must not be delayed by unnecessary retrials.
Background & Facts
The Dispute
The appellant, Shivaji Gopal Kurhade, filed a partition suit seeking a 1/6th share in ancestral properties described in Schedules A to E, alleging that the respondents - his siblings and cousins - were attempting to alienate the property to his exclusion. The respondents contested the suit, claiming an oral partition occurred in 1980 during the lifetime of their common father, Gopal Kurhade, and that the suit was barred by limitation. They further asserted that properties in Schedules D and E were self-acquired.
Procedural History
- 2012: Original suit filed as Special Civil Suit No. 248 of 2012, later renumbered as No. 211 of 2014.
- 2020: Trial Court passed a partial decree granting the appellant a 1/6th undivided share in Schedules A to C, but declined to grant relief on Schedules D and E.
- 2020: Appellant filed Regular Civil Appeal No. 19 of 2020; respondents filed cross-objections, challenging the decree and raising limitation as a defense.
- 2024: Appellate Court set aside the Trial Court’s decree and remanded the suit for fresh adjudication, framing new issues including one on limitation.
Relief Sought
The appellant sought reversal of the remand order, arguing that the Appellate Court erred in ordering a complete retrial instead of deciding the limitation issue on existing evidence under Order XLI Rule 25 CPC. The respondents defended the remand as necessary to ensure fair adjudication.
The Legal Issue
The central question was whether the failure of the Trial Court to frame a specific issue on limitation justifies a wholesale remand of the entire suit under Order XLI Rule 23A CPC, when evidence on the issue has already been led and no prejudice is shown.
Arguments Presented
For the Appellant
The appellant’s counsel argued that non-framing of an issue does not vitiate proceedings if the parties were aware of the controversy and led evidence on it. Reliance was placed on Uttara Thool v. Praveen Thool, Kunju Kesavan v. M.M. Philip, and Sayeda Akhtar v. Abdul Ahad, which hold that procedural irregularities cannot invalidate a decree unless prejudice is demonstrated. The counsel emphasized that Order XLI Rule 25 CPC provides a statutory mechanism to frame additional issues and obtain findings without remanding the entire suit. The Appellate Court’s failure to consider this alternative rendered its order arbitrary.
For the Respondent
The respondents contended that the omission to frame an issue on limitation deprived them of a fair opportunity to prove their defense. They argued that the oral partition in 1980 was a critical fact, and the suit’s delay until 2012 indicated acquiescence. They further claimed that the appellant had suppressed material facts by amending his plaint to delete a paragraph referencing prior litigation. The respondents maintained that the Appellate Court acted correctly in ensuring a complete and fair trial.
The Court's Analysis
The Court held that the Appellate Court’s decision to remand the entire suit was legally unsustainable. It emphasized that remand is an exception, not a rule, and must be reserved for cases where the trial is fundamentally defective or where the appellate court cannot decide the matter on the existing record.
"The mere absence of a formally framed issue on limitation could not, by itself, render the entire trial vitiated."
The Court noted that the respondents had pleaded limitation in their written statements and had led evidence on the alleged oral partition. The Trial Court had already adjudicated the matter on merits, considering both oral and documentary evidence. The Appellate Court failed to examine whether the findings were perverse or unsupported, or whether the omission caused any prejudice.
The Court cited Corporation of Madras v. M. Parthasarathy to affirm that appellate courts have two statutory options: (1) remand under Rule 23A, or (2) frame an additional issue and obtain findings under Rule 25. The latter was clearly available here. The Court further relied on Zarif Ahmad v. Mohd. Farooq and Sirajudheen v. Zeenath to underscore that remand cannot be mechanical or based on ipse dixit.
The Court also clarified the law on limitation in partition suits, citing Syed Shah Ghulam v. Syed Shah Ahmed, which holds that the cause of action is perpetually recurring so long as the joint status subsists and the property remains unpartitioned. The Appellate Court failed to reconcile this with the conflicting precedent in Krishna Pillai v. Padmanabha Pillai, demonstrating a lack of application of mind.
The Verdict
The appellant won. The Bombay High Court held that non-framing of an issue on limitation does not justify a wholesale remand when evidence is on record and no prejudice is shown. The impugned order was set aside, and the matter was remanded to the Appellate Court to decide the appeal on merits using its powers under Order XLI Rules 24 and 25 CPC.
What This Means For Similar Cases
Remand Is Not a Default Remedy
- Practitioners must challenge any remand order that lacks a finding of prejudice or perversity in the Trial Court’s judgment.
- Appellate courts must explicitly state why Rule 25 CPC was not used before resorting to Rule 23A.
- A bare assertion that an issue was not framed is insufficient to justify retrial.
Evidence on Record Prevails Over Procedural Defects
- If parties have led evidence on a pleaded defense (e.g., limitation), the absence of a formal issue does not invalidate the trial.
- Courts must apply Section 99 CPC - no decree shall be reversed for procedural irregularity unless prejudice is proved.
- Appellate courts are empowered to decide issues on existing evidence, even if not formally framed.
Limitation in Partition Suits Requires Nuanced Application
- The cause of action in partition suits is recurring; limitation does not begin from the date of death of the common ancestor.
- Practitioners must argue Syed Shah Ghulam to counter claims of limitation based on ancient events.
- Courts must reconcile conflicting precedents before applying limitation bars.
