Order XLI CPC Rules 23-29: Remand, Final Disposal and Additional Evidence

Rules 23, 23A, 24, 25, 26, 26A, 27, 28 and 29 of Order XLI of the Code of Civil Procedure, 1908 govern important stages in the hearing of a first appeal, including remand, final determination, reference of issues and production of additional evidence.

At a glance: Rule 23 deals with remand after reversal of a decree passed on a preliminary point; Rule 23A covers remand in other cases where retrial is necessary; Rule 24 permits final disposal where the evidence is sufficient; Rules 25 and 26 deal with referred issues and findings; Rule 26A requires a date to be fixed after remand/reference; and Rules 27 to 29 regulate additional evidence in appeal.

Order XLI Rule 23 CPCRemand of case by Appellate Court

Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence, if any, recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

Order XLI Rule 23A CPCRemand in other cases

Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.

Order XLI Rule 24 CPCWhere evidence on record is sufficient, Appellate Court may determine case finally

Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.

Order XLI Rule 25 CPCAppellate Court may frame issues and refer them for trial

Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues and refer the same for trial to the Court from whose decree the appeal is preferred. In such case it shall direct that Court to take the additional evidence required.

The Court to which the issues are referred shall proceed to try them and shall return the evidence to the Appellate Court together with its findings and the reasons for those findings within the time fixed by the Appellate Court or extended by it from time to time.

Order XLI Rule 26 CPCFindings and evidence to be put on record; objections to findings

(1) The evidence and findings returned under Rule 25 shall form part of the record in the suit, and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding.

(2) Determination of appeal. After the expiration of the period fixed for presenting such memorandum, the Appellate Court shall proceed to determine the appeal.

Order XLI Rule 26A CPCOrder of remand to mention date of next hearing

Where the Appellate Court remands a case under Rule 23 or Rule 23A, or frames issues and refers them for trial under Rule 25, it shall fix a date for the appearance of the parties before the Court from whose decree the appeal was preferred for the purpose of receiving the directions of that Court as to further proceedings in the suit.

Order XLI Rule 27 CPCProduction of additional evidence in Appellate Court

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. However, additional evidence may be allowed where:

  1. the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or
  2. the party seeking to produce additional evidence establishes that, notwithstanding the exercise of due diligence, such evidence was not within that party's knowledge or could not, after the exercise of due diligence, be produced at the time when the decree appealed against was passed; or
  3. the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

Order XLI Rule 28 CPCMode of taking additional evidence

Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence itself, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it, when taken, to the Appellate Court.

Order XLI Rule 29 CPCPoints to be defined and recorded

Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined and record on its proceedings the points so specified.

Official reference: The Code of Civil Procedure, 1908 is available from the Legislative Department, Ministry of Law and Justice and from the India Code official text (PDF). State amendments and applicable High Court rules, where relevant, should also be checked for local proceedings.