Scope and Utility of Procedure of Remand- An Analysis
Code of Civil Procedure II
1
 Table Of Cases
1. Abdul Gani v. Devi Lal, AIR 1960 Raj 77.
2. Ashwini Kumar K. Patel v. Upendra J. Patel, (1999)3 SCC 161.
3. Bechan Pande v. Dulhin Janki Devi, (1976)2 SCC 286.
4. Budhilal Deviprasad v. Jagannathdas Bajrangdar, AIR 1963 MP 344.
5. Burn and Company Limited v. Employees, AIR 1957 SC 38.
6. Chief Commissioner v. Chadha Motor Transport Company, AIR 1968 SC 1199.
7. Commissioner of Wealth Tax v. Aluminium Corporation, (1973)3 SCC 343.
8. D.P Singh v. State of Uttar Pradesh, AIR 1973 All 174.
9. Habib Teli v. Ali Teli, AIR 1968 J&K 9.
10. Krishan Swarup Oberoi v. Ram Niwas, AIR 1975 Punj 22.
11. Mahendra v. Sushila, AIR 1965 SC 364.
12. Rama Rao v. Vimala Kumari, AIR 1969 AP 216.
13. S. Rajeshwar Rao v. The Collector, (1969)2 SCWR 344.
14. Sadak Ali v. Safar Ali Sufani, AIR 1920 Cal 374.
15. Sanatan Mohapatra v. Hakim Mohammad Kazim Mohammad, AIR 1977 Ori 194.
16. Seth Anand Kumar v. Smt. Abnash Kaur, 1969 SCD 524.
17. State of Gujarat v. Ibrahim Akabarali, AIR 1974 Guj 54.
18. Tricambji Dambji and Company v. Verji Kanji, AIR 1923 Bom 142.
Scope and Utility of Procedure of Remand- An Analysis
Code of Civil Procedure II
 Table Of Statutes
1. Code of Civil Procedure (Amendment) Act, 1976.
2. Code of Civil Procedure, 1908.
3. Court Fees Act, 1870.
2
Scope and Utility of Procedure of Remand- An Analysis
Code of Civil Procedure II
3
 Introduction
Remand means to send back1. Where the trial court has decided the suit on a
preliminary point without recording findings on other issues and if the appellate court
reverses the decree so passed, it may send back the case to the trial court to decide
other issues and determine the suit2. This is called remand.
By passing an order of remand, an appellate court directs the lower court to reopen and
retry the case. On remand, the trial court will readmit the suit under its original number in
the register of civil suits and will proceed to determine it as per the directions issued by
the appellate court.3
Section 107 (1)(b) of the Code of Civil Procedure empowers an appellate court to
remand a case. Specifically remand is dealt with in Order 41 Rules 23, 23A and 25. A
remand cannot be ordered lightly. It can be ordered only if the following conditions are
satisfied:
The suit must have been disposed of by the trial court on a preliminary point-4 Before the
Court can exercise the power of remand under rule 23, it is necessary to show that the
lower court has disposed of the suit on a preliminary point. A point can be said to be a
preliminary point, if it is such that the decision thereon in a particular way is sufficient to
dispose of the whole suit, without the necessity for a decision on the other points in the
case5. Such preliminary point may be one of fact or law, but the decision thereon must
have avoided the necessity for a full hearing of the suit. Thus where the lower court
dismisses the suit as being time barred; or barred by limitation; or res judicata; or as
disclosing no cause of action; it does so on a preliminary point of law. On the other hand,
where the lower court dismisses the suit on the ground that the plaintiff is estopped from
proving his case; or that it was motivated; or that the plea raised at the hearing was
different from that raised in the plaint, it does so on a preliminary point of fact.
A.N Saha, Mitra’s Legal and Commercial Dictionary (Calcutta: Eastern Law House) at 614.
Order 41 Rule 23 of the Code of Civil Procedure, 1908.
3
C.K Takwani, Civil Procedure (Lucknow: Eastern Book Company, 2000) at 286.
4
Supra note 2.
5
D.P Singh v. State of Uttar Pradesh, AIR 1973 All 174.
1
2
Scope and Utility of Procedure of Remand- An Analysis
Code of Civil Procedure II
4
The decree under appeal must have been reversed-6 No remand can be ordered by the
appellate court under Rule 23 unless the decision of the lower court on the preliminary
point is reversed in appeal7. Where such is not the case, the appellate court cannot
order remand simply because the judgment of the lower court is not satisfactory; or that
the lower court had misconceived or misread the evidence; or had ignored the important
evidence; or had acted contrary to law; or that the materials on which the conclusions
are reached are scanty; and the appellate court must decide the appeal in accordance
with law.8
Rule 23A of Order 41 as inserted by the Code of Civil Procedure (Amendment) Act,
1976, empowers the appellate court to remand a case even when the lower court has
disposed of the case otherwise than on a preliminary point and the remand is considered
necessary by the appellate court in the interests of justice. The primary objective of Rule
23A is to widen the powers of the appellate court to remand a case in the interests of
justice. Even before the insertion of Rule 23A by the Amendment Act, 1976 it was held
that an order of remand can be passed, if it is necessary to do so in the interests of
justice. But it was also held that the power of remand must be regulated by the
provisions of Rules 23 and 25 of Order 41 and that inherent powers of the court under
Section 151 of the Code of Civil Procedure, 1908 cannot be exercised by the appellate
court to order remand9. The power of remand, was thus, strictly a limited power and yet
in practice, many cases arose wherein remand was necessitated for some reasons other
than those mentioned in Rules 23 and 25. The Law Commission of India, therefore,
recommended an amendment of the rule empowering the appellate court to remand a
case whenever it thinks it necessary in the interests of justice. The said recommendation
has been accepted and Rule 23A has accordingly been added.10
The importance of power of remand cannot be further emphasized. The power to order
remand is an invaluable power of an appellate court which goes a long way in enabling
the court to serve the ends of justice. The trial court is the most appropriate forum to go
into facts and evidence and if it does not do so and dismisses the case on a preliminary
6
Order 41 Rule 23 of the Code of Civil Procedure, 1908.
Rama Rao v. Vimala Kumari, AIR 1969 AP 216.
8
Supra note 3 at 287.
9
Mahendra v. Sushila, AIR 1965 SC 364.
10
P.M Bakshi, Mulla-The Code of Civil Procedure (Bombay: N.M Tripathi Private Limited, 1990) at 1050.
7
Scope and Utility of Procedure of Remand- An Analysis
Code of Civil Procedure II
5
point then the Appellate court must remand the case to the trial court so that a proper
decision based on appreciation of the facts and evidence is given by the trial court. This
will serve the interests of justice and ultimately benefit the parties. Remand also lessens
the burden on appellate courts and enables them to dispense justice faster. However at
the same time the power of remand must be exercised judiciously and care and caution
must be taken to prevent its abuse.
Scope and Utility of Procedure of Remand- An Analysis
Code of Civil Procedure II
6
 Research Methodology
Aims and Objectives
The aim of this project is to perform an anlaysis of the scope and utility of the procedure
of remand. The Project aims at analyzing the relevant provisions in the Code of Civil
Procedure dealing with the power of remand viz. Section 107(1) and Order 41 Rules 23,
23A and 25. Objectives of this project include exploring the need for remanding a case
and exploring the utility and relevance of remand. The aim of this project also involves
looking at the concept of the inherent power of remand ie. the power of the appellate
court to remand a case vis-à-vis Section 151. Thus overall the objective of this project is
to thoroughly analyse the concept of remand as envisaged by the Code of Civil
Procedure.
Nature of Project
The project is analytical as well as descriptive in nature. However the majority of the
project is analytical in nature.
Sources of Data
Both secondary and primary sources of data have been used. A host of leading text
books on the Code of Civil Procedure and case reporters like the All India Reporter,
Supreme Court Cases etc. have been referred to.
Scope and Limitation
The scope of this project is limited to an analysis of Remand under Order 41Rules 23,
23A and 25 and looking at the utility of remand and the inherent power of remand.
Provisions in the Code of Civil Procedure which may be incidentally related to the
aforementioned provisions have not been analysed. The procedure of remand in
countries like England and the USA has not been explored or analysed.
Research Questions
The research questions are:

Which are the various provisions in the Code of Civil Procedure dealing with
Remand?
Scope and Utility of Procedure of Remand- An Analysis
Code of Civil Procedure II
7

What is remand of a case?

What is the scope of remand?

Have there been any changes in the procedural law relating to remand?

How have these changes affected the law of remand?

What is the utility and relevance of an order of remand?

What is the concept of the Inherent Power of Remand?

Has the procedure of remand been abused or is it actually helping to serve the
ends of justice?
Mode of Citation
A uniform mode of citation has been adopted throughout the course of the project.
Scope and Utility of Procedure of Remand- An Analysis
Code of Civil Procedure II
8
 The Scope Of Procedure Of Remand- Order 41 Rules 23,
23A
Rule 23 of Order 41 applies only when the trial court disposes of the entire suit as the
result of it’s finding on a preliminary issue without deciding other issues. It has no
application when it has decided the suit on the merits of the whole case and given its
findings on all the issues and on all the evidence. An order of remand cannot be made in
such cases on the ground that the judgment did not discuss the evidence with reference
to the several issues and that it contravened Order 20 Rule 5. A remand for the purpose
of adducing fresh evidence to explain the evidence on record, where it was
unambiguous or to cover up deficiencies or to fill in gaps is not warranted by this rule.
When additional evidence is tendered in appeal the Court should act under Rule 27 and
not remand the whole case under this rule. If an important issue has been omitted or is
necessary that again is a matter to be dealt with under Rule 25 and not under this rule.
Then again an order of remand could be made only if the finding of the lower court is
reversed in appeal. Where there is no reversal of the finding, the appellate court cannot
proceed under this rule and remand the case for a fresh enquiry on the ground that a
finding is necessary on a point not dealt with in the judgment or that the enquiry has
been inadequate. When an order of remand by an appellate court is set aside by a
superior court, the former court has power to pass another order of remand on grounds
other than those on which the original order was made. The appellate court cannot after
finding on facts remand the case to a lower court to pass a decree in accordance with
that finding. Case cannot be sent back for trial of a question of law.11
Issues in Rule 23
Preliminary Point
A point can be said to be a preliminary point within the meaning of this rule, if it is such
that the decision thereon in a particular way is sufficient to dispose of the whole suit,
without the necessity for a decision on the other points in the case12. The point may be
one of fact or of law. It is to be noted that a ‘preliminary point’ is different from a
11
Ibid at 1051.
T.L Venkatarama Aiyar, Mulla-The Code of Civil Procedure Vol. 2 (Bombay: N.M Tripathi Private
Limited, 1967) at 1594.
12
Scope and Utility of Procedure of Remand- An Analysis
Code of Civil Procedure II
9
‘preliminary issue’. Thus a suit will be held to be disposed of on a preliminary point if it is
disposed of any of the following grounds:13

That the suit is barred by res judicata

That the suit is barred by limitation or any other rule of law

That the document on which the suit is based is inadmissible in evidence

That the plaintiff is estopped from proving his case

That the plaintiff has no cause of action

That the suit is bad for defect in the description of the defendant

That the matter is concluded by a valid award

That the case raised at the hearing is different from that raised in the plaint

That the suit has abated
There is a conflict of opinion, however, as to whether the point should be one not relating
to the merits of the case. It has been held in one class of cases that a point is not a
preliminary point where it relates to the merits of the case although its decision may
dispense with the necessity of a decision on the other points in the case. Thus according
to this view a suit cannot be said to have been disposed of on a preliminary point where
in a suit for ejectment and damages, the court finds that the plaintiff has failed to
establish the title alleged by him and dismisses the suit.14
According to another class of cases a point may be a preliminary point although it relates
to the merits of the case. Thus, according to these decisions, a preliminary point means
some point either collateral to the merits which precluded their determination altogether,
or some particular question which, though relating to the merits, precluded their general
determination15. Thus, according to this view in a suit for damages for breach of contract
the question as to the factum of contract is a preliminary point although it relates to the
merits of the case.
It is to be noted that where the Court has adjudicated on all the issues involved, the
disposal cannot be said to be on a preliminary point merely because one of the issues is
of a preliminary nature and the suit has been dismissed on the basis of the decision
13
D.V Chitaley, The Code of Civil Procedure Vol. 4 (Nagpur: Wadhwa and Company Law Publishers,
1995) at 875.
14
Ibid at 875-876.
15
Abdul Gani v. Devi Lal, AIR 1960 Raj 77.
Scope and Utility of Procedure of Remand- An Analysis 10
Code of Civil Procedure II
thereon or because it has decided the case with reference to the admissions made by
both the parties without taking other evidence or because it has not referred to the
evidence in its judgment, or because other points, which might have arisen if the suit had
been differently framed or if the amendment of the plaint had been allowed, have not
been decided.
In order to attract the application of this rule the entire suit must have been disposed of
on a preliminary point and not only a portion of it16. For example if X sues Y for an
injunction restraining Y from interfering with X’s enjoyments of his lands and for a
declaration of his right of easement over Y’s land. The Court decrees the claim for
injunction but dismisses the suit so far as the claim for easement is concerned on the
ground that, on the face of the plaint, the statement of the easement claimed is so
inadequate and unsatisfactory that it is impossible to enter into the question thereby
raised. In such a case where only a portion of the suit is disposed of on a preliminary
point Rule 23 will not apply.
Decision of the lower Court must be reversed
No remand can be ordered under Rule 23 unless the decision of the lower court on the
preliminary point is reversed in appeal. If the decision of the lower court is not reversed
in appeal it is not a good ground for ordering a remand under this rule. Thus if the lower
court has decided the issue on a wrong view as to the burden of proof or that the
appellate court is not able, on the materials before it to agree with the findings of the
lower court or that the appellate court considers that the lower court’s finding is not
supportable on the ground given by that court but might be supported on another ground
which requires investigation then no order of remand can be passed under this rule17. If
the appellate court thinks it necessary to permit additional evidence sought to be
adduced then the case clearly falls under Order 41 Rule 27 and there is no occasion to
set aside the decree of the trial court and remand the case under Rule 23 as the
procedure to be followed in such a case is laid down in Order 41 Rules 28 and 29.18
16
Supra note 13 at 878.
Supra note 13 at 879-880.
18
Supra note 13 at 880.
17
Scope and Utility of Procedure of Remand- An Analysis 11
Code of Civil Procedure II
However where the finding of the lower court on a preliminary point is definitely reversed
by the appellate court the suit may be remanded under rule 23 notwithstanding that the
decision of the appellate court is made subject to a finding of fact which is left to be
determined by the lower court19. Where the intention to reverse the decree is clear the
remand is not vitiated by the mere absence of a formal order setting aside the decree.
Where the lower court has decided the suit on several preliminary points, the appellate
court should reverse the decision on all of them before remanding the case under this
rule.
Under Rule 23 it is not competent to the appellate court to affirm the decision of the
lower court regarding one part of the suit and remand the suit regarding the other part,
because, otherwise there would be two final judgments in the same case- a thing
opposed to the provisions of the Code of Civil Procedure- and because there is only a
partial reversal of the lower court’s decree.20 Where the appellate court remands a case
with a direction that the findings of the lower court are set aside the direction refers to
the findings considered by it and on which it differed from the lower court. The findings
which the appellate court was not called upon to consider cannot be deemed to have
been set aside.21
The appellate court may, if it thinks fit, remand the case
These words show that the appellate court is not bound to remand a suit under Rule 23
merely because the circumstances of a case fall within the provisions of the rule; it may
either do so or proceed under Order 41 Rules 24 or 25. The question is one of
discretion. The appellate court should not, however, rashly and without sufficient cause,
order a retrial in any case in which it can possibly be avoided. A remand should not thus
be made under this rule in a case which could efficiently be dealt with under Rule 25(3)
or under Rule 24(4). Nor should the appellate court order a remand so as to enable a
party to fill up the lacunae in his case. The question whether a remand should be made
19
Tricambji Dambji and Company v. Verji Kanji, AIR 1923 Bom 142.
S.C Sarkar and Prabhas C. Sarkar, Sarkar’s The Law of Civil Procedure Vol. 2 (Nagpur: Wadhwa and
Company, 1992) at 1508.
21
Supra note 13 at 880.
20
Scope and Utility of Procedure of Remand- An Analysis 12
Code of Civil Procedure II
or not depends upon the facts and circumstances of each case. An order of remand is
bad when it is made on a most superficial and cursory view of the matter. 22
And may further direct what issue or issues shall be tried in the case
When an appellate court remands a case to the trial court for fresh disposal it can give
directions as to the manner in which the suit when it goes back should be dealt with.
Where the lower court has disposed of the suit only on one of the several issues the
appellate court can in remanding the case under this rule direct the trial of the other
issues. But this rule does not enable the appellate court, while remanding the suit for trial
de novo, to direct that one of the essential issues in the case should be omitted23, for the
rule contemplates that the whole suit except with reference to the preliminary point
should be remanded to the lower court. It is, however, open to the appellate court to give
directions to the lower court with a view to restrict the scope of the inquiry before it and if
any such limits are so imposed, the lower court has no power to travel beyond those
limits.24
Effect of Remand under Rule 23
An order of remand reverses the decision of the lower court and reopens the case for
trial by the lower court except in regard to the matters decided by the appellate court. An
order of remand is appeal able. If the party aggrieved by an order of remand does not
appeal there from, it cannot subsequently question its correctness under the inherent
powers of the court under section 151 of the Code of Civil Procedure. Similarly, the court
to which the case is remanded is also bound by it and cannot go behind the order of
remand25. Where an order of remand is passed in circumstances which do not warrant it
the defect involved in the order is one of procedure and not of substantive law and
comes within the purview of Section 99 of the Code of Civil Procedure. While remanding
the case, the appellate court shall fix a date for the appearance of the parties before the
22
Habib Teli v. Ali Teli, AIR 1968 J&K 9.
Sadak Ali v. Safar Ali Sufani, AIR 1920 Cal 374.
24
Budhilal Devi Prasad v. Jagannathdas Bajrangdar, AIR 1963 MP 344.
25
S. Venkataraman, The Code of Civil Procedure Vol. 4 (Madras: Madras Law Journal Office, 1993) at
606.
23
Scope and Utility of Procedure of Remand- An Analysis 13
Code of Civil Procedure II
lower court so as to receive its directions regarding the suit or proceeding pending in the
lower court.26
Once an order of remand is made by a superior court, an inferior court has to decide the
matter as per the direction of the superior court, In Commissioner of Wealth Tax v.
Aluminum Corporation,27 the High Court of Calcutta expressed ‘doubts’ about the
‘competence’ of the Supreme Court to remand the case. When the matter reached the
Supreme Court again, the apex court observed that the High Court clearly exceeded its
jurisdiction in examining the ‘competence’ of the Apex Court to remand the case. It
declared, “It would have done well to remind itself that it was bound by the orders of this
court and could not entertain or express any argument or views challenging their
correctness. The judicial tradition and propriety required that court not to sit on judgment
over the decision and orders of this court.”
Rule 23A
Rule 23A of Order 41 as inserted by the Code of Civil Procedure (Amendment) Act,
1976, empowers the appellate court to remand a case even when the lower court has
disposed of the case otherwise than on a preliminary point and the remand is considered
necessary by the appellate court in the interests of justice. The primary objective of Rule
23A is to widen the powers of the appellate court to remand a case in the interests of
justice. Even before the insertion of Rule 23A by the Amendment Act, 1976 it was held
that an order of remand can be passed, if it is necessary to do so in the interests of
justice. But it was also held that the power of remand must be regulated by the
provisions of Rules 23 and 25 of Order 41 and that inherent powers of the court under
Section 151 of the Code of Civil Procedure, 1908 cannot be exercised by the appellate
court to order remand. The power of remand, was thus, strictly a limited power and yet in
practice, many cases arose wherein remand was necessitated for some reasons other
than those mentioned in Rules 23 and 25. The Law Commission of India, therefore,
recommended an amendment of the rule empowering the appellate court to remand a
case whenever it thinks it necessary in the interests of justice. The said recommendation
has been accepted and Rule 23A has accordingly been added.28
26
Order 41 Rule 26A of the Code of Civil Procedure, 1908.
(1973)3 SCC 643.
28
C.K Takwani, Civil Procedure (Lucknow: Eastern Book Company, 2000) at 288.
27
Scope and Utility of Procedure of Remand- An Analysis 14
Code of Civil Procedure II
An order of remand under this rule operates as an “open remand” under which the whole
case is remitted to the lower court for retrial, subject to no restrictions except those
specifically imposed by the appellate court.29
Thus where a case is remanded to the trial court under this rule, the trial court has the
power to allow for amendment of pleadings unless there is a specific direction in the
order of remand prohibiting any amendment sought by any party.30
Rule 23A does not contemplate an order of remand for retrial on fresh evidence
excepting in rare circumstances where there has been no proper or regular trial and
prejudice has been caused.31
An order of remand under this Rule is appeal able under Order 43 Rule 1 (u) and hence
not subject to the revisional powers of the High Court.
It is to be noted that unlike in cases of remand under Rule 23 a remand under rule 23A
does not lead to an order for refund of the court fee under Section 13 of the Court Fees
Act, 1870 as that section applies only to orders of remand under Order 41 Rule 23.32
29
Sanatan Mohapatra v. Hakim Mohammad Kazim Mohammad, AIR 1977 Orissa 194.
Id.
31
Supra note 13 at 904.
32
Krishan Swarup Oberoi v. Ram Niwas, AIR 1975 Punj 22.
30
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Code of Civil Procedure II
 Remand Under Order 41 Rule 25
In a remand under Rule 25 of Order 41 the appellate court does not reverse the lower
Court’s decree but retains the matter on its file and only calls for a finding by the lower
court on some issue or issues. This rule enables the appellate court to remit the issue to
the lower court for findings where the lower court has failed to try or frame any issue or
determine any question of fact essential to the right decision of the suit on the merits.
Where the lower Court has not disposed of the suit on a preliminary point within the
meaning of Rule 23 but at the same time has omitted to try any material issue or to
determine any material question of fact, it is not competent to the appellate court to
remand the whole case under Rule 23, but it may, if necessary, remit issues for findings
under this rule keeping the case on its own file33. So also where the lower court, in
disposing of a suit on merits, has failed to determine one or more material issues, the
proper procedure is to remit issues under this Rule but not to remand the whole case for
retrial.34
The rule does not enable the appellate court to remand the suit for retrial merely on the
ground that reception of additional evidence is necessary. The appellate court is not
precluded from passing an order of remand under the present rule merely because it
would have been competent to the Court under the circumstances to remand the case
under Rule 23. Even where neither this Rule nor Rule 23 applies the Court has inherent
power to remand a case where the ends of justice require such a course to be adopted.
But if a case is covered by this rule the court is not entitled to invoke its inherent powers
in remanding the case.35
Issues in Rule 25
Has omitted to frame or try any issue
The rule applies only to cases in which the lower court has omitted to try any issue or
determine any question of fact. Hence, where the lower court has not omitted to decide
33
Supra note 13 at 908.
Id.
35
General principle of law that when a specific statutory provision governs a particular subject then the
court cannot invoke its inherent powers under Section 151 of the Code of Civil Procedure in respect of that
subject.
34
Scope and Utility of Procedure of Remand- An Analysis 16
Code of Civil Procedure II
any issue or any question of fact, a remand cannot be ordered under this rule merely for
the purpose of enabling a party to produce evidence which ought to have been given in
the lower court. Similarly an appellate court will not be justified in framing an issue upon
a matter which is already covered by the issues of the trial court as such a course would
result in letting in fresh evidence on the same questions. But if an issue, though it covers
in terms the main question in the case, does not sufficiently direct the attention of the
parties to the main question of fact necessary to be decided, and a party may have been
prevented from adducing evidence, a remand can be ordered directing a fresh issue to
try the principal question of fact. A remand can also be made under this rule where the
lower court has not arrived at its findings after a full and proper trial, in as much as, in
such a case, the issue cannot be regarded as having been tried by the lower court.
Where an amendment of the law makes a new question material for the decision of the
case the appellate court should frame a new issue to cover the question and remand the
issue to the trial court to take evidence and decide the issue.36
May, if necessary, frame issues
The appellate court is not bound to remand issues under this rule in every case in which
the lower court has failed to frame or decide any issue. The question is one for the
exercise of the discretion of the Court in each case. Thus where in spite of there being
no formal issue on a point it has been tried by the lower Court after giving the parties full
opportunity to produce their evidence and present their case on it, a remand under this
rule is not necessary, especially where the parties have led evidence fully on the point.
Where the lower Court has actually given findings on issues raised based on evidence
there is no ground for remanding the case merely because the lower court has not given
elaborate reasons for the findings or that additional evidence is necessary for the proper
decision of the case. Where a point is newly raised in the appellate court it should not be
decided without giving the opposite party an opportunity to meet the new case. But
where a new issue arising out of enactment passed subsequent to the decree of the trial
court was sought to be raised in the appellate court it was held that it was neither
desirable nor proper for the appellate court to order remand for trial of such issue which
would result in reopening the whole case. A remand will not be ordered if the
circumstances are such that even if the remand is granted it is unlikely that the party
36
Supra note 13 at 910.
Scope and Utility of Procedure of Remand- An Analysis 17
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asking for the remand would be able to establish the case it wants to make out37. So
also a remand will not be ordered where though an objection was taken in the written
statement no issue was framed in the trial court and the point was also not raised in the
first appellate court. In ordering a remand under this rule the appellate court should
specify the issues to be tried by the lower court. It is only where that necessary
allegations have been made by the parties and the lower court has omitted to frame
issues that appellate court can frame issues under this rule and remand the case.
However where there is no pleading on a particular point of fact the appellate court
would be acting illegally if it frames an issue on the point and remands the case under
this rule.38
Shall direct such court to take the additional evidence required
The power to direct the lower court to take additional evidence under this rule must be
distinguished from the power to take additional evidence under Rule 27 of Order 41.
Rule 25 applies where the lower court has failed to frame or try any issue whereas Rule
27 will apply where there is no question of framing issues but the lower court has
refused to admit evidence which ought to have been admitted, or the appellate court
requires additional evidence to enable it to pronounce judgment. Again in a remand
under Rule 25 the lower court can take the additional evidence directed to be taken and
decide the issue remitted on the appreciation of such evidence. Under Rule 27 the lower
court has to simply take the additional evidence and send it to the appellate court.
Neither Rule 25 nor Rule 27 will apply where the appellate court sets aside the entire
decree.
The refusal of an application under Rule 27 is no bar to the court directing the lower
court, on remand under this rule, to take additional evidence on the issues remanded to
be tried by it.
The words ‘additional evidence required’ leave a discretion to the appellate court not to
direct the lower court to take further evidence when it remands a case for a finding on a
specific issue on a consideration of the evidence in the case. Where the appellate court
has not directed the lower court to take further evidence, the lower court may take
37
38
Supra note 13 at 911.
State of Gujarat v. Ibrahim Akabarali, AIR 1974 Guj 54.
Scope and Utility of Procedure of Remand- An Analysis 18
Code of Civil Procedure II
further evidence, but it is not bound to do so39. This rule provides that the appellate court
may direct the lower court to take additional evidence. When such a direction is made
the lower court is bound to carry out the direction. A refusal to carry out the direction is a
denial of justice and is destructive of one of the basic principles in the administration of
justice. But to attract this principle the direction to the lower court must be clear, certain,
definite and without any ambiguity.40
The Amendment Act of 1976 added the words “within such time….to time” to Rule 25
and thus empowered the appellate court to fix a time limit for returning the evidence and
the findings.
Distinction between Rules 23 and 2541
The following are the points of distinction between Rules 23 and 25:

Where an order of remand is made under Rule 23, the whole case goes back for
decision to the lower court (except on the point on which the appellate court has
reversed the finding of the lower court); whereas in the case of an order under
Rule 25, the case is retained on the file of the appellate court and only issues are
remitted to the lower court for findings.

An order of remand under Rule 23 is appeal able but an order under Rule 25 is
not.

An order of remand under Rule 23 is a final order which cannot be reconsidered
by the court which passed it except on review, whereas an order under Rule 25,
is according to the great majority of cases, an interlocutory order which is open to
the court to reconsider.
39
M.P Tandon, The Code of Civil Procedure ( Allahabad: Allahabad Law Agency, 1990) at 354.
Supra note 13 at 913.
41
S.M Mehta, Code of Civil Procedure (Allahabad: Wadhwa and Company, 1990) at 474.
40
Scope and Utility of Procedure of Remand- An Analysis 19
Code of Civil Procedure II
 The Inherent Power Of Remand
As far as any matter in question in a particular case or a particular topic falls within the
ambit of the express provisions of the statute, the inherent powers of the Court must, to
that extent, be regarded as abrogated by the Legislature and the Court cannot have
recourse in such cases to its inherent powers. Rule 23 as amended by the High Courts
of Allahabad, Andhra Pradesh, Kerala, Madras, Karnataka and Rajasthan embodies the
inherent power of the Court and the power is prescribed within certain limits namely that
the court can remand the case in the interests of justice only where it comes to the
conclusion that it is necessary to set aside the decree. The appellate court cannot
therefore have inherent jurisdiction under Section 151 to remand a case falling under
this rule as amended.42
Thus, the inherent power of remand should not be exercised except when it is clearly
necessary for the ends of justice to do so. When there is any specific provision in the
Code of Civil Procedure which would meet the necessities of the case or when the
circumstances are such that the appellate court can itself dispose of the case, no
remand should be ordered. A remand should not generally speaking be ordered when
the defect in the proceedings has been due to the negligence or default of the party that
asks for remand. The mere fact that the evidence on the record is not sufficient to enable
the court to come to a definite finding on the point in issue, is not sufficient to remand the
case where there is no reason to think that the parties did not have an opportunity of
producing all the evidence that they desired to produce before the trial court. There
cannot be an order of remand for retrial of a whole suit on fresh evidence excepting in
very rare circumstances where there has been no proper or regular trial and prejudice
has thereby been caused.
An order of remand in an appeal from an order is not one under this rule and must be
treated as made in the exercise of the inherent power of the Court.43
42
43
Supra note 13 at 883.
S.Venkataraman, The Code of Civil Procedure Vol. 4 (Madras: Madras Law Journal Office, 1993) at 622.
Scope and Utility of Procedure of Remand- An Analysis 20
Code of Civil Procedure II
The power of remand is inherent in the appellate jurisdiction conferred on an appellate
authority and the fact that there is no specific provision in the statute conferring such
jurisdiction does not disable the appellate authority from exercising the power.
Summarising the general principles relating to the inherent power of remand of the
courts, courts have the right to exercise the inherent power of remand in the following
cases, among other cases:44

When the Appellate Court directs an amendment of the plaint or the addition of
fresh parties.

When the appellate court finds that the suit is bad for misjoinder of parties and
cause of action. In such a case the appellate court may remand the case and
direct the lower court to return the plaint for amendment.

When the lower court has dismissed a suit on the ground that the suit has been
brought in the name of the wrong person as plaintiff or defendant.

When the lower court has misunderstood the whole case and when the suit has
been disposed of on an erroneous issue.

When the lower court has failed to determine material issues in the case.
Thus it is seen that the concept of inherent power of remand clearly violates the principle
that when a statute provides an express provision with respect to a particular topic or
subject then in such cases the court cannot invoke its inherent powers. The Code of Civil
Procedure clearly provides for the procedure of remand through Section 107 (1)(b) and
specifically through Order 41 Rules 23, 23A and 25. In spite of this the judiciary has held
that depending on the facts and circumstances of each case and more importantly in the
interests of justice Courts have the inherent power of remand and can remand a case in
exercise of their inherent powers under Section 151 of the Code of Civil Procedure.
The issue of whether a Court has the inherent power of remand is highly controversial
and there is a school of thought which believes that courts should not have an inherent
power of remand as such a power goes against well established principles of law and
Courts should exercise their power of remand only in accordance with the provisions of
Order 41 Rules 23, 23A and 25. However the inherent powers of remand has received
judicial sanction and should be accepted as legal and valid. However this power must be
exercised keeping in mind the interests of justice, equity and fairness.
44
Supra note 13 at 884-885.
Scope and Utility of Procedure of Remand- An Analysis 21
Code of Civil Procedure II
 The Utility Of Remand
The issue of the utility of the procedure of remand as laid down in the Code of Civil
Procedure is controversial. There is a school of thought which is of the opinion that the
procedure of remand as contemplated by the Code of Civil Procedure helps to serve the
ends of justice and helps remove any discrepancies which may be present in the trial
court process and gives the parties another chance to get justice with the appellate court
further providing a safeguard and seeing that justice is not denied. On the other hand
there is another school of thought that believes that the procedure of remand is
unnecessary and helps in delaying justice and prolongs litigation which increases the
backlog of cases in the courts.
To understand the utility of remand it is thus necessary to analyse the procedure of
remand from both these view points in the light of judicial decisions.
Section 107(1)(b) of the Code of Civil Procedure empowers the appellate court to
remand a case. Order 41 Rule 23 and 23A and 25 specifically deal with the procedure of
remand.
In Chief Commissioner v. Chadha Motor Transport Company45 it was contended that a
clause in a notification was invalid as:
(a) the law was on a subject on which the legislature was not competent to legislate
(b) vice of excessive delegation
The High Court had not considered the grounds raised in the petition challenging the
validity of the petition and thus the Supreme Court held that in this situation a remand
was necessary to serve the ends of justice.
In Burn and Company Limited v. Employees46 the Supreme Court stated that in the face
of an undisputed fact no order for remand can be made because in that case it will only
result in the proceedings dragging on and the relationship between the parties
deteriorating.
45
46
AIR 1968 SC 1199.
AIR 1957 SC 38.
Scope and Utility of Procedure of Remand- An Analysis 22
Code of Civil Procedure II
The Supreme Court has also held47 that the High Court should not ordinarily remand a
case merely because it considers the reasoning of the lower court to be wrong. Such
remand orders lead to unnecessary delays and cause prejudice to the parties to the
case. When material is available before it the High Court should exercise its own
discretion and decide the appeal.
Highlighting the dangers of delay which an order for remand can cause, the Supreme
Court of India in Bechan Pande v. Dulhin Janki Devi48 observed that “To remand the suit
to the trial court would necessarily have the effect of keeping alive the strife between the
parties and prolonging this long drawn litigation by another round of legal battle in the
trial court, and thereafter in appeal. It is time, in our opinion, that we draw the final
curtain and put an end to this long meandering course of litigation between the parties. If
the passage of time and the laws of nature bring to an end the lives of men and women,
it would perhaps be the demand of reason and the dictate of prudence not to keep alive
after so many years, the strife and conflict started by the dead. To do so would in effect
be defying the laws of nature and offering a futile resistance to the ravage of time. If
human life has a short span, it would be irrational to entertain a taller claim for disputes
and conflicts which are a manifestation of human life frailty. The courts should be loath
to entertain a plea in a case like the present which would have the effect of condemning
succeeding generations of families to spend major part of their lives in protracted
litigation”.
The Supreme Court has also held49 that the Code of Civil Procedure does not
contemplate remand for writing a more satisfactory judgment. Thus the appellate court
cannot remand a case merely because the materials on which it is to base its judgment
are scanty.
In Seth Anand Kumar v. Smt. Abnash Kaur50 the Supreme Court held that “It is a serious
matter to order a remand as it means considerable waste of public time. Retrial can be
ordered only in exceptional circumstances”.
47
Ashwini Kumar K. Patel v. Upendra J. Patel, (1999)3 SCC 161.
(1976)2 SCC 286.
49
S. Rajeshwar Rao v. The Collector, (1969)2 SCWR 344.
50
1969 SCD 524.
48
Scope and Utility of Procedure of Remand- An Analysis 23
Code of Civil Procedure II
Thus, the procedure of remand is undoubtedly of great value and utility and intrinsic to
the powers of an appellate court and helps in serving the ends of justice in a better
fashion. However the power of remand must be exercised with extreme caution and
care. The Courts must decide judiciously whether to order a remand or not especially in
light of Rule 23A which widens the scope of remand and enables courts to remand a
case in the interests of justice. To exercise the power of remand lightly would cause
unnecessary delay and prejudice resulting in the denial of justice to the parties. Thus the
procedure of remand has utility as long as it is used judiciously with the genuine
intention of serving the ends of justice. However if the power of remand is abused it can
cause great inconvenience to the parties and totally nullify the goals of justice.
Scope and Utility of Procedure of Remand- An Analysis 24
Code of Civil Procedure II
 Conclusion
Remand of a case is an important weapon in the armoury of the Appellate Court to serve
the ends of justice.
The scope of remand as per Order 41 Rule 23 and 25 is clear and there is very little or
no ambiguity at all. However controversy regarding the scope of remand arises in Order
41 Rule 23A. This Rule empowers the appellate court to issue an order of remand in
cases other than those covered by Rule 23 and greatly widens the scope of remand.
The judiciary too has widened the scope of remand greatly by stating that appellate
courts should remand a case in the interests of justice if the case is not covered by the
relevant provisions in the Code of Civil Procedure. Such judicial decisions have given
rise to the concept of Inherent Power of Remand and Courts issuing orders of remand
under Section 151 of the Code of Civil Procedure which violates the principles of law as
usually courts cannot take recourse to their inherent powers in respect of a subject
which has specific statutory provisions governing it.
Thus in light of this extremely wide scope of remand courts must be extremely cautious
and careful while remanding a case. The interests of justice will be defeated if appellate
courts start using the power of remand loosely and indiscriminately without application of
mind. The court must order a remand only after appreciating the facts and
circumstances in each case and after satisfying its self to the hilt that a remand is
imperative and absolutely necessary in order to better serve the interests of justice. If
these guidelines are not followed it will result in denial of justice and unnecessary and
prolonged delays.
Courts must also be extremely careful to see that parties are not prejudiced by an order
of remand. A remand should not generally be ordered when the defect in the proceeding
has been due to the negligence or default of the party who will benefit by the remand.
Moreover a particular party may sometimes pray for a remand in order to delay court
proceedings and use delay as a weapon. Courts should see through such abusive
intentions and prevent abuse of the court process and not order a remand when the
effect of such remand will not serve the interests of justice and merely result in the
parties being locked up in protracted litigation.
Scope and Utility of Procedure of Remand- An Analysis 25
Code of Civil Procedure II
Thus the honourable object of remand which is to dispense effective justice can be
easily deviated from and remand can result in denial of justice if proper caution is not
exercised. Thus Courts must use the power of remand very judiciously. The Supreme
Court has stated that “It is a serious matter to order a remand as it means considerable
waste of public time. Retrial can be ordered only in exceptional circumstances”.51
Nevertheless remand is an extremely important provision in the Code of Civil Procedure
and is extremely significant and important to civil litigation and ultimately the interests of
justice.
51
Seth Anand Kumar v. Smt. Abnash Kaur, 1969 SCD 524.
Scope and Utility of Procedure of Remand- An Analysis 26
Code of Civil Procedure II
 Bibliography
Books
1. C.K Takwani, Civil Procedure (Lucknow: Eastern Book Company, 2000).
2. D.V Chitaley, Code of Civil Procedure Vol. 4 (Nagpur: Wadhwa and Company
Law Publishers, 1995).
3. M.P Tandon, The Code of Civil Procedure (Allahabad: Allahabad Law Agency,
1990).
4. P.M Bakshi, Mulla-The Code of Civil Procedure (Bombay: N.M Tripathi Private
Limited, 1990).
5. S.C Sarkar and Prabhas C. Sarkar, Sarkar’s Law of Civil Procedure Vol. 1 (New
Delhi: Wadhwa and Company, 1995).
6. S.C Sarkar, Law of Civil Procedure Vol. 2 (Nagpur: Wadhwa and Company Law
Publishers, 1992).
7. S.M Mehta, Code of Civil Procedure ( Allahabad: Wadhwa and Company, 1990).
8. S.Venkataraman, The Code of Civil Procedure Vol. 4 (Madras: Madras Law
Journal Office, 1993).
9. S.Venkataraman, The Code of Civil Procedure Volume 1 (Madras: Madras Law
Journal Office, 1992).
10. T.L Venkatarama Aiyar, Mulla-The Code of Civil Procedure (Bombay: N.M
Tripathi Private Limited, 1967).
Dictionaries
1. A.N Saha, Mitra’s Legal and Commercial Dictionary (Calcutta: Eastern Law
House, 1999).
Scope and Utility of Procedure of Remand- An Analysis 27
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Scope and Utility of Procedure of Remand- An Analysis 28
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