The Madhya Pradesh High Court has established a critical precedent on the scope of remand powers under Order 41 Rule 23A of the Code of Civil Procedure (CPC), holding that remand is justified only when there is evidence insufficiency or a procedural lapse requiring retrial. This judgment clarifies that mere improper appreciation of evidence by the trial court does not warrant remand, reinforcing the appellate court's duty to decide cases on merits where evidence is already on record.
Background & Facts
The Dispute
The case originated from a family property dispute involving agricultural land in village Jalwa, District Ujjain. The plaintiffs, comprising the second wife and sons of Mayaram, filed a suit for declaration and permanent injunction regarding 2.04 hectares of land (Survey No. 370/1). They claimed the land was allotted to them through a family partition deed executed by Late Siddhaji, Mayaram's father. The defendant, Mayaram, allegedly attempted to alienate the property by executing an agreement to sell in favor of a third party, prompting the suit.
Procedural History
The case progressed through multiple judicial forums:
- 2009: Civil Suit No. 28A/2009 filed before the trial court
- 2011: Trial court dismissed the suit, holding that:
- The partition deed (Exh. P/1) was inadmissible under Section 35 of the Indian Stamp Act and Section 17 of the Registration Act due to insufficient stamping and lack of registration
- Revenue records (Exh. P/3 and P/4) were inadmissible under Section 176 of the Evidence Act as the issuing Patwari was not examined
- The plaintiffs failed to prove execution of the partition deed
- 2013: First Appellate Court remanded the matter to the trial court for fresh adjudication on the admissibility of Exh. P/1 and P/2, citing procedural irregularities in handling objections
Relief Sought
The appellant, Mayaram, challenged the remand order under Order 43 Rule 1(u) CPC, arguing that the first appellate court exceeded its jurisdiction by remanding the case for procedural compliance rather than deciding it on merits. The respondents sought to uphold the remand to cure defects in document admissibility.
The Legal Issue
The central question before the High Court was whether the first appellate court could remand a case under Order 41 Rule 23A CPC solely on the ground of improper appreciation of evidence, or whether remand requires a finding of evidence insufficiency or a procedural lapse necessitating retrial.
Arguments Presented
For the Appellant
The appellant contended that:
- The partition deed (Exh. P/1) was inadmissible as it was unregistered and insufficiently stamped, citing Shakeel Ahmed v. Syed Akhlaq Hussain and Rameshlal Gurdasmal Adwani v. Gajanan Dadoba Pawar
- The trial court had already recorded a finding that the plaintiffs failed to prove execution of the deed, rendering remand unnecessary
- Remand would enable the plaintiffs to fill evidentiary lacunae, contrary to settled law
- The first appellate court should have decided the case on merits under Order 41 Rule 24 CPC since evidence was already on record
For the Respondents
The respondents argued that:
- Exh. P/1 was merely an acknowledgement of an earlier oral partition, not a document effecting partition, and thus did not require registration
- The trial court erred by not impounding the document under Section 33 of the Indian Stamp Act to allow payment of stamp duty and penalty
- The first appellate court correctly identified procedural irregularities in the trial court's handling of objections to document admissibility
- The suit property was ancestral, and the plaintiffs had a legitimate claim as heirs of Late Siddhaji
The Court's Analysis
The High Court conducted a meticulous examination of Order 41 Rules 23A to 25 CPC, which govern remand in civil appeals. The Court emphasized that remand is an exceptional remedy, not a routine recourse for appellate courts dissatisfied with trial court findings.
"The mandate of Order 41 Rule 23A of the CPC and related provisions upto Rule 25 is to consider whether in the facts of the given case, retrial is considered necessary. The appellate Court may reverse the decree and remand the matter to the trial Court or where evidence on record is sufficient, the appellate Court in terms of Order 41 Rule 24 can pronounce judgment after resettling the issue after finally determining the suit."
The Court held that the first appellate court erred by remanding the case without establishing either:
- Evidence insufficiency requiring retrial, or
- Procedural lapse necessitating fresh adjudication
Instead, the first appellate court merely noted that the trial court failed to decide objections to document admissibility at the appropriate stage. The High Court clarified that such procedural irregularities could have been addressed by the appellate court itself, without remanding the entire case.
On the admissibility of Exh. P/1, the Court observed that the respondents' contention - that the document was an acknowledgement of partition rather than a partition deed - required independent consideration by the first appellate court. The Court directed the appellate court to determine:
- Whether Exh. P/1 required registration and proper stamping
- Whether it could be admitted as evidence of an earlier oral partition
The Court distinguished the precedent in Shakeel Ahmed (supra), noting that the case involved unregistered documents conferring title, whereas the present case concerned a family settlement. The Court also relied on Shivkumar v. Sharanabasappa, which held that remand is unwarranted where evidence is already on record and requires only proper appreciation.
The Verdict
The appeal was allowed. The High Court set aside the remand order dated 27.02.2013 and directed the first appellate court to decide the appeal on merits after considering the evidence already on record. The Court held that remand under Order 41 Rule 23A CPC is not justified merely because the trial court improperly appreciated evidence.
What This Means For Similar Cases
Remand Is Not a Substitute for Appellate Adjudication
The judgment reinforces that appellate courts must exercise remand powers judiciously. Practitioners should argue:
- Remand is permissible only when evidence is insufficient or a procedural lapse necessitates retrial
- Where evidence is already on record, the appellate court must decide the case on merits under Order 41 Rule 24 CPC
- Procedural irregularities in handling objections to document admissibility can be addressed by the appellate court itself, without remanding the case
Admissibility of Unregistered Partition Deeds
The judgment highlights the need for careful scrutiny of documents purporting to effect or acknowledge partitions:
- Partition deeds require registration and proper stamping under Section 17 of the Registration Act and Section 35 of the Indian Stamp Act
- Acknowledgements of oral partitions may not require registration, but their admissibility depends on the facts of each case
- Appellate courts must independently determine the nature of such documents and their admissibility, rather than remanding the matter for procedural compliance
Ancestral Property and Family Settlements
The case underscores the complexities of family property disputes:
- Ancestral property disputes among family members require careful consideration of oral and documentary evidence
- Family settlements and partitions, even if oral, must be proved through admissible evidence
- Revenue records alone may not suffice to prove title or possession unless properly authenticated under the Evidence Act
