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2016 (7) TMI 1651 - HC - Indian LawsSuit for injunction simpliciter - suit was decreed by the trial court, granting a permanent prohibitory injunction decree, restraining the defendants from trespassing into the plaint item Nos. 1 and 2 properties and from using any portion of the said properties as a pathway - HELD THAT:- On a close reading of Rule 23-A of Order XLI of the Code it will be evident that, to invoke the power, vested in an appellate court, to remand a case, twin satisfactions will have to be arrived at. Firstly, the appellate court, on an analysis of the facts and on applying the principles of law, should find that the decree is to be reversed. Only after taking such a decision, the appellate court can step into the next arena. Second condition to be satisfied for invoking the power is that, the appellate court on merits, should find that a retrial is essential for the complete adjudication of the lis between the parties. Well settled is the proposition of law that whether the court should or should not remand a case is one of discretion. Surely, the discretion has to be exercised on sound and reasonable premises and guided by judicial principles. If only these two conditions are satisfied, a remand under Order XLI Rule 23-A of the Code could be legally justified. Merely on establishing any one of the conditions mentioned above, an appellate court shall not remand a case to the lower court. In other words, these twin conditions are conjunctive and not disjunctive. Insofar as a remand under Order XLI Rule 23 of the Code is concerned, it can be called a restricted or limited remand. An order of remand passed by an appellate court by invoking Order XLI Rule 23A of the Code is wider in scope. The impugned judgment is set aside. The matter is remitted back to the lower appellate court - Appeal allowed.
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