Rule 23 provide that (i) where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point, and (ii) the decree is reversed on appeal, the Appellate Court may , if it thinks fit, remand the case, and direct what issue or issue are to be tried in the case so remanded. The Court must send copy of its judgment and order the lower Court, with directions to re-admit the suit proceed to determine it. This rule enables the Appellate Court to remand a case to the lower Court for its determination on the merits if conditions (i) and (ii) above are fulfilled. It does not empower the Appellate Court to remand the case for further evidence to the Court below and direct it to pass another decree. All that it can do to frame issues, and send the same to the lower Court for the return of the finding, after the receipt of which the Appellate Court must dispose of the appeal upon the evidence before it.

According to condition (i) above the decision of the lower Court must have been on a preliminary point. The expression ‘preliminary point’ is a comprehensive one, and includes, not only legal pleas like limitation, res judicate .etc, but also points of issues, whether of fact or law, the determination or which has avoided a full hearing of the suit . But where the first Court has decided a suit on the merits of the whole case, as where it has decided on the evidence and on all the issues, the Appellate Court has no power to remand the case under this rule (Remeshur Singh v. Shedin,(1980) 12 All. 510)

Further, in order to attract the application of this rule, the entire suit must have been disposed of on the preliminary point, not only a portion of it. Even if the entire suit is decided on a preliminary point, condition (ii) of the rule allows an order of remand only when the Appellate Court has reversed the decision of the lower Court on the preliminary point.

Dr. Ram Niwas Sharma, Associate Professor, Unitedworld School of Law (UWSL)

Disclaimer: The opinions / views expressed in this article are solely of the author in his / her individual capacity. They do not purport to reflect the opinions and/or views of the College and/or University or its members.

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