"Not appreciable at all": Supreme Court on Kerala High Court mechanically remanding suit back to trial court

The Supreme Court recently disapproved the mechanical manner in which the Kerala High Court had remanded a civil suit to the trial court at the stage of second appeal. [Ramakrishnan Kadinhipally and ors vs PT Karunakaran Nambiar].A bench of Justices MR Shah and Hima Kohli found that the High Court had dealt with the case as if it were a writ petition under Article 226 of the Constitution, rather than a second appeal under Section 100 of the Code of Civil Procedure (CPC)."We are constrained to observe that the manner in which the High Court has dealt with the Second Appeal under Section 100 of the CPC is not appreciable at all ... the impugned judgment and order passed by the High Court is unsustainable," the Supreme Court concluded. The bench also took critical note that the High Court had casually allowed the plaintiff to amend his plea, even though such a prayer for amendment was not raised before the trial court or first appellate court. Further, the Court observed that the questions framed by the High Court while considering the second appeal were questions of fact, and not substantial questions of law at all. The case also prompted the Supreme Court to highlight that in order for a case to be remanded back to the trial court, a case for the same should specifically be made out under Order 41, Rule 23, 23A and 25 of the CPC. However, the High Court, in this case, had not recorded any findings on this aspect, the top court noted."No findings are recorded by the High Court that the case falls within Order 41 Rule 23, 23A and 25 of the CPC and the matter is required to be remanded to the learned trial Court on setting aside the concurrent findings of fact recorded by both the courts below. The High Court has mechanically remanded the suit, which is wholly impermissible," the Supreme Court said..These observations were made while dealing with an appeal challenging a October 2019 Kerala High Court order. By the said order, the High Court had allowed a second appeal moved by a plaintiff, whose civil suit had been dismissed by the trial court and the first appellate court.On moving the second appeal, however, the High Court set aside concurrent findings by the two courts below, and allowed the plaintiff to amend the suit and incorporate a new prayer.The High Court allowed such amendment after the plaintiff conceded that such a substantial prayer was omitted by mistake and after it was urged that the plaintiff should not suffer on account of a plaint drafted by someone else.Aggrieved by this High Court ruling, the defendant moved the Supreme Court in appealThe Supreme Court, in turn, quashed the High Court ruling and restored the orders of the trial court and first appellate courts.Senior Advocate V Chitambresh with advocates C Govind Venugopal, Sonal Gupta, Manoj V George, KM Vignesh Ram, Nasib, Darshna Nair, and Shilpa Liza George represented the petitioners.Advocates Kaleeswaram Raj, Thulasi K Raj, and Nishe Rajen Shonker appeared for the respondents..[Read order].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.