Remand Redundant After Allowing Additional Evidence Under CPC: Calcutta High Court

The Calcutta High Court has slammed the practice of 'approbating and reprobating' in judicial orders, ruling that a First Appellate Court cannot simultaneously allow additional evidence and remand a suit for a fresh trial. This decision reinforces the procedural mandate that once an appellate court accepts new evidence, it must proceed to adjudicate the dispute on merits rather than shifting the burden back to the trial court.

Justice Sugato Majumdar, presiding over the Single Bench, heard an appeal challenging the procedural inconsistency of a First Appellate Court that set aside a trial decree only to remand the matter after allowing an application for additional evidence.

Appellate Court Cannot Approbate and Reprobate

The High Court observed that the First Appellate Court committed a serious error of law. While the lower appellate court had allowed an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908, it simultaneously remanded the suit to the Trial Court for appreciation of evidence and taking evidence afresh.

The Court, in its reasoning, observed: "The First Appellate Court committed a serious error of law in passing the impugned judgment inasmuch as it allowed the Appellant to adduce additional evidence under Order XLI Rule 27 of the Code of Civil Procedure, 1908 and at the same time remanded the suit for adducing fresh evidence depriving the Appellant of the right allowed under Order XLI Rule 27 of the Code of Civil Procedure, 1908. The First Appellate Court in fact approbated and reprobated in the same breath."

Directives for Meritorious Disposal

The Court has following directions:

"The impugned Judgment and Decree passed by the Learned Civil Judge (Senior Division), Bolpur, Birbhum in Title Appeal No. 8 of 2012 dated 19/12/2014 is hereby set aside. In view of the fact that the Appellant was allowed to adduce additional evidence under Order XLI Rule 27 of the Code of Civil Procedure, 1908, the First Appellate Court shall receive evidence, if any, adduced by the Appellant and shall decide the appeal on merit preferably within a period of six months. This Court refrains from commending anything on the merit of the appeal. Accordingly, the instant Appeal stands disposed of with a direction to transmit the Trial Court Record forthwith to the First Appellate Court along with a copy of this order."

Background

The dispute originated from Title Suit No. 17 of 2007, filed by the Respondent for declaration and injunction, which was dismissed by the Learned Civil Judge (Junior Division), Bolpur. On appeal (Title Appeal No. 8 of 2012), the First Appellate Court set aside the dismissal and remanded the suit for fresh trial while simultaneously allowing the production of additional evidence under the Code of Civil Procedure, 1908.

The Appellants challenged this remand, arguing it offended the provisions of the Code of Civil Procedure, 1908. Both parties eventually concurred that the Appellate Court should have decided the appeal itself once additional evidence was permitted. The High Court, agreeing with this contention, set aside the remand order and directed the First Appellate Court to conclude the proceedings within six months.

Case Details:
Case No.: FMA/923/2026
Case Title: Tamal Krishna Mondal & Ors Vs Orama Bala Ghosh & Ors
Appearances:
For the Petitioner(s): Ms. Sarbananada Sanyal, Adv.; Ms. Poulomi Chakraborty, Adv.
For the Respondent(s): Mr. N.G. Mukherjee, Adv.; Ms. Anindita Banerjee, Adv.

Source: 2026 CaseBase(CAL) 2910