Remand Under Order XLI Rule 23A CPC | Not Automatic For Non-Framing Of Issues : Bombay High Court

The Bombay High Court has clarified that appellate courts cannot mechanically order remand under Order XLI Rule 23A of the Code of Civil Procedure, 1908 merely because a specific issue was not framed by the trial court. The judgment emphasizes that remand is an exceptional power that must be exercised only when the trial court's findings are perverse or when evidence on material issues is lacking, not as a routine corrective measure for procedural omissions.

Background & Facts

The Dispute

The appellant, Shivaji Gopal Kurhade, filed a partition suit seeking a 1/6th share in ancestral properties against his half-brothers and their descendants. The properties, described in Schedules A to E of the plaint, were claimed to be joint family assets. The appellant alleged that the respondents were attempting to alienate the properties to his exclusion, prompting him to seek partition and injunction.

Procedural History

The case progressed through multiple stages:

• 2012: Original suit filed as Special Civil Suit No. 248 of 2012 (later renumbered as 211 of 2014)
• 2014: Trial commenced with evidence led by both parties
• 2020: Trial Court decreed partition in favor of the appellant for properties in Schedules A to C, excluding Schedules D and E as self-acquired
• 2020: Appellant filed Regular Civil Appeal No. 19 of 2020; respondents filed cross-objections
• 2024: Appellate Court remanded the suit for fresh adjudication, framing an additional issue on limitation

The Parties' Positions

• Appellant: Argued that the properties were ancestral and that no oral partition had occurred. Contended that the suit was not barred by limitation as the cause of action for partition is recurring.
• Respondents: Claimed an oral partition in 1980 and argued that the suit was barred by limitation. Further contended that properties in Schedules D and E were self-acquired.

The Legal Issue

The central question before the High Court was whether the appellate court was justified in remanding the entire suit under Order XLI Rule 23A CPC solely on the ground that the trial court had not framed a specific issue on limitation, without examining the evidence already on record or assessing whether prejudice was caused to the respondents.

Arguments Presented

For the Appellant

The appellant's counsel contended:

• The remand was unwarranted as the parties had led evidence on all material issues, including limitation, despite the absence of a formally framed issue.
• Reliance was placed on Uttara Thool v. Praveen Thool and Nedunuri Kameswaramma v. Sampati Subba Rao to argue that non-framing of an issue does not vitiate proceedings if no prejudice is caused.
• The appellate court failed to apply the principle that remand is an exception, not the rule, as held in Zarif Ahmad v. Mohd. Farooq.
• The appellate court could have framed the issue of limitation and decided it under Order XLI Rule 25 CPC, as held in Corporation of Madras v. M. Parthasarathy.

For the Respondents

The respondents' counsel supported the remand, arguing:

• The suit was barred by limitation as an oral partition had occurred in 1980, and the appellant had not challenged it for decades.
• The appellant had suppressed material facts by amending the plaint to delete references to a prior suit filed in 1988.
• The trial court's failure to frame an issue on limitation deprived the respondents of an opportunity to lead evidence, justifying remand.

The Court's Analysis

The High Court critically examined the appellate court's reasoning and held that the remand was unjustified for several reasons:

1. Remand is Exceptional: The Court reiterated that Order XLI Rule 23A CPC empowers remand only in exceptional cases, such as when the trial court's judgment is perverse or when evidence on material issues is lacking. The appellate court had not demonstrated that the trial court's findings were unsustainable or that the evidence was insufficient.

2. No Prejudice Caused: The Court observed that the respondents had pleaded limitation and led evidence on the issue, despite the absence of a formally framed issue. The omission did not cause any prejudice, as the parties were fully aware of the controversy. The Court relied on Uttara Thool v. Praveen Thool to hold that non-framing of an issue does not vitiate proceedings if no prejudice is shown.

3. Statutory Alternatives Ignored: The appellate court failed to consider statutory alternatives under Order XLI Rule 25 CPC, which allows the appellate court to frame additional issues and call for findings without ordering a complete retrial. The Court emphasized that the appellate court could have decided the issue of limitation itself or adopted a limited remand, as held in Corporation of Madras v. M. Parthasarathy.

4. Limitation in Partition Suits: The Court noted that the appellate court had not examined the nuanced law on limitation in partition suits. It relied on Syed Shah Ghulam v. Syed Shah Ahmed to reiterate that the cause of action in partition suits is perpetually recurring so long as the joint status subsists and the property remains unpartitioned.

"The power of remand under Order XLI Rule 23A of the CPC is an exceptional power and cannot be exercised mechanically. A wholesale remand is warranted only when the judgment of the Trial Court is shown to be wholly unsustainable or where the Suit has been disposed of without recording evidence on material issues."

1. Procedural Irregularities: The Court held that the appellate court's approach defeated the purpose of appellate scrutiny. It noted that the re-framed issues substantially overlapped with the trial court's original issues, and no new controversy had been introduced. The remand would enable the parties to fill lacunae in their evidence, impermissibly altering the suit's outcome.

The Verdict

The High Court allowed the appeal, setting aside the appellate court's order of remand. The Court directed the appellate court to reconsider the matter on merits, appreciating the evidence already on record and framing the issue of limitation if necessary, in accordance with Order XLI Rules 24 and 25 CPC. The parties' contentions were left open for adjudication.

What This Means For Similar Cases

Remand Cannot Be Ordered Mechanically

Practitioners must argue that remand under Order XLI Rule 23A CPC is not automatic for procedural omissions. Courts must:

• Examine whether the trial court's findings are perverse or unsupported by evidence.
• Assess whether the omission caused prejudice to any party.
• Consider statutory alternatives under Order XLI Rule 25 CPC before ordering a complete retrial.

Evidence on Record Must Be Considered

• The appellate court cannot ignore evidence already led by the parties.
• Non-framing of an issue does not vitiate proceedings if the parties were aware of the controversy and led evidence on it.
• The burden lies on the party seeking remand to demonstrate prejudice caused by the omission.

Limitation in Partition Suits Requires Nuanced Analysis

• The cause of action in partition suits is perpetually recurring, as held in Syed Shah Ghulam v. Syed Shah Ahmed.
• Courts must examine whether the joint status subsists and whether the property remains unpartitioned before applying the bar of limitation.
• Oral partitions must be proved by clear and unequivocal evidence to attract the bar of limitation.