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QUESTION | Explain the concept of remand and partial remand under CPC [10 marks]
Importance - MOST IMPORTANT CIVIL LAW QUESTION | CPC
QUESTION POSTED ON | 09.10.2021
MODEL ANSWER WILL BE POSTED ON | 10.10.2021
Answers can be written till 10.10.2021.
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How to answer this question?
This question can be attempted in three parts:
First Part- Give general meaning of remand, legal meaning of remand
Second Part- Concept of remand under CPC, Partial remand, relevant provisions.
Third Part- Differentiate between General remand and Partial remand under CPC
According to Black’s dictionary, Remand means-
a) The act or an instance of sending something back for future action.
b) An order remanding a case, claim or person.
Meaning of remand in law
When the suit is decided by the trial court on a preliminary issue without recording the findings on other issues and if that decree passed by trial court is reversed by the appellate court then, it may send that case back to the trial court to decide other issues and then determine the case.
Concept of Remand under CPC
Section 107 (1)(b) of the Code of Civil Procedure provides power to an appellate court to remand a case. Specifically remand is dealt under Order 41 Rules 23, 23A and 25of CPC. The court can remand a case only if the following conditions are satisfied:
i. Order 41 Rule 23- if the court of first instance has disposed off the suit on preliminary issue of law and on appeal the dismissal of suit is set aside. Then in such case, the court may remand the case.
ii. Order 41 Rule 23A- this rule was inserted in 1976, which provides that when case which is decided on point other than preliminary issue is set aside and it re-opens, then the court can exercise same powers as given under Rule 23. If the evidence on record is sufficient to enable the Appellate Court to pronounce judgment, the appellate court can decide the case finally.
Partial Remand: Order 41 Rule 25- It deals with the cases where the trial court has disposed of the case not on a preliminary point but had omitted to try any material issue i.e. an issue without which suit could not have been decided on merits.
The following conditions must be fulfilled in order to invoke provisions of Rule 25-
· That the lower court omitted to frame any issue, or
· That the lower court omitted try any issue, or
· That the lower court omitted to decide any question of fact which was necessary to determine the matter on merits.
Difference in application of Rule-23 and Rule-25 of Order 41 of CPC:
