1969 INSC 0039
                                         SUREME COURT OF INDIA

                                                 Seth Anand Kumar

                                                           Vs.

                                                     Abnash Kaur

                                         (Sikri, Bachawat and Hegde JJ.)

                                                      11.02.1969

                                                    JUDGMENT

HEGDE, J.

1. The question for consideration in this appeal by Special leave is whether the order of remand
made by the High Court is in accordance with law.

2. This appeal arises from a probate proceeding. The question therein was whether the will
propounded by the respondent herein, said to have been executed on 26th January 1957 by her late
husband Seth Shiv Prasad was genuine. When that proceeding was pending before the Circuit Bench
of the Punjab High Court at Delhi yet another proceeding to which the parties herein were also
parties was also pending. That was a petition for winding up Lord Krishna Sugar Mills. It was
numbered as Civil Original 58-D of 1960. On March 19, 1965 the parties to the probate proceedings
agreed before the court that the evidence led in Civil Original 58-P of 1960 be read as evidence in
the probate case. On the basis of that agreement the learned judge directed that the evidence in C. O.
58-D/1960 be read as evidence in the probate proceedings. After ah elaborate trial wherein
considerable evidence, oral as well as documentary was led, the trial judge came to the conclusion
that the will propounded was not genuine. He accordingly dismissed the application. Aggrieved by
the decision, the respondent in this case appealed to the Letters Patent Bench of the Punjab High
Court which later stood transferred to the Delhi High Court.

3. In the appeal no objection was taken to the mode in which the evidence was recorded nor was
there any allegation that there was no proper trial or complete or effectual adjudication of the
proceedings. We were told that no such contentions were taken at the hearing of the appeal nor any
request made to remand the case for retrial. It appears that the appeal was heard on number of days
and the case reserved for judgment. The High Court by its order dated October 20, 1967 set aside
the order of the trial court and remanded the case to the trial court for a fresh trial.

4. Quite clearly the remand was not ordered under Rule 23, Order 41, CPC. The trial court had not
decided the case on any preliminary ground nor is this a case which falls under Rule 25, Order 41.
Therefore the order in question can at best be said to have been made only in exercise of the
inherent powers of the court. The scope of inherent powers of the court to order a remand has been
considered in several decisions of this Court. In Civil Appeal No. 618 of 1960 (A. Shankararamiah
v. M. S. Lakshmi narayana Moorthi and Ors.) this Court observed:
"An order remanding a proceeding may ordinarily be made under Order 41, Rule 23 of the CPC
when the Trial Court has decided the case on a preliminary point arid the appellate court reverses
the decision of the Trial Court. An order of retrial after remand may also be made in exercise of the
inherent jurisdiction, of the Court where the Court of appeal is satisfied that there has been no
proper trial or no complete or effectual adjudication of the proceeding and the party complaining of
the error or omission or irregularity has suffered material prejudice on that account. Such an order
may also be made to prevent abuse of the process of Court. But power to order retrial after remand
where there has already been a trial on evidence exercised merely because the appellate court is of
the view that the parties who could lead better evidence in the Court of first instance have failed to
do so. A trial de novo after setting aside a final order passed by the Court of first instance may
therefore be made in exceptional circumstances, where there has been no real trial of the
proceeding, or where allowing the order to stand would result in abuse of the process of Court."

5. In the case before us the appellate bench of the Delhi High Court has neither come to the
conclusion that there has been no real trial of the proceeding nor that the procedure adopted by the
trial court has resulted in abuse of the process of the Court. Its reasons for ordering retrial are stated
thus :

"On 19-3-65 when Anand Kumar R. W. 6 was being examined, the counsel for the parties before the
learned Single Judge agreed that the evidence in C.O. No. 55-D of 1960 which is apparently the
petition for winding up the Lord Krishna Sugar Mills Ltd., be read as evidence in this case and the
court ordered accordingly. It is this order which has created considerable confusion in the hearing of
this appeal before us and in deed, on more than one occasion, when the counsel at the bar referred to
some applications or statements on the record of C. O. No. 58-D of 1960 for contradicting or
discrediting the statements of some of the witnesses. We were faced with the difficulty of
determining whether they would legally be admissible and what was their value for they were not
put to the witnesses for explanation. "In the absence of a proper printed record of this appeal and
without knowing what documents and statements properly constituted the record of this case, we
have found it extremely difficult, if not almost impossible, to have a clear vision even of the overall
picture of the material constituting the record of this case. It is note-worthy that the record of C.
O/58-D of 1960 is also fairly bulky and being not printed, one has to wade through the mass of
papers to find out various applications and documents to understand the arguments of the counsel
before us most of the arguments before us were not fully discussed in the order of the learned Single
Judge and, in any event, this appeal being a rehearing, the records of both the cases were assumed
by the parties to be the record of this case.

The result is that the situation is so confusing, and if we may gay so baffling that we do not find it
possible to deal with and dispose of satisfactorily the arguments addressed before us. It is true that
both sides have tried to get typed, parts of the record from their respective points of view, but this
has not solved our difficulty."

6. From the above observations it is clear that the only ground on which the retrial of the case has
been ordered is that in the absence of a properly arranged and printed record the court found if
difficult to decide the case. We do not think that on this ground a remand could have been ordered.
It is a serious matter to order the retrial of a case which means considerable waste of considerable
public time. Retrial can be ordered only in exceptional circumstances. We quite realise that hearing
of a heavy appeal without proper assistance in the shape of properly prepared records is quite a
difficult matter but such difficulties will have to be overcome by the appellate court by taking
necessary steps under its rules. Absence of such facilities do not justify an order of remand. It may
be that the manner in which the evidence has been recorded has led to considerable difficulty in
hearing the appeal. This certainly is regretable. But that was done under the orders of a court and it
is too late in the day to undo that order. We are quite sure that the learned Judges of the appellate
court with their and do experience will be able to overcome those difficulties and do justice
according to law without driving the parties to a fresh trial.

7. The learned counsel for the respondent wanted to justify the order of remand on grounds other
than those mentioned in the order. We did not permit him to do so. As mentioned earlier the oral in
question had not be en made on the basis of any application, oral or written made by any of the
parties to the proceeding. It was a suo moto order. Therefore all that we have to consider is whether
the reasons which persuaded the learned judges of the appellate court to make that order are valid in
law. We are satisfied that those reasons are not relevant. At any rate they do not afford any legal
basis for the impugned order.

8. For the reasons mentioned above this appeal is allowed and the order of the High Court
remanding the case is set aside. The High Court will now proceed to dispose of the appeal in
accordance with law. There will be no order as to costs in this appeal.