B.C. Misra, J.
(1) This writ petition came up for hearing before a single Judge, who has by order dated 16th April, 1964 referred it to a larger Bench for decision.
(2) The writ is directed against the order of the Additional District Judge, dated 3rd February, 1966, by which he has on appeal set aside the order of the Estate Officer, dated 6th April, 1965 passed under the Public Premises (Eviction of Unauthorised Occupants) Act for eviction of the petitioner from the land in dispute, and remanded the case to the Estate Officer.
(3) The land in dispute is a small strip of land situated outside the Shiv Temple in Nizamuddin. The land was claimed by the Land & Development Officer as belonging to the Government and the possession of the petitioner was alleged to be unauthorised. Proceedings for his eviction were initiated by the Estate Officer. On behalf of the Government reliance was placed on a lease deed granted by the Government to Sanatan Dharam Sabha. There was some dispute about the area of the land involved in the case. The Government claimed the area to be 15' x 15', while the petitioner submitted that he was in possession of a much larger area of 40' x 22'. The contention of the petitioner was that the land did not belong to the Government, but was under the control of the Delhi PracheenPanchayat Halwain. On behalf of the Government were produced only two documents, namely, the lease deed Ex. A1., and the site plan Ex. A8. It is significant to add that no request was made by the Government for an opportunity to produce any further evidence. ' On behalf of the petitioner oral evidence was produced. On this material, the Estate Officer came to the conclusion that the petitioner was in unauthorised occupation of the premises and, thereforee, ordered his eviction.
(4) Feeling aggrieved, the petitioner filed an apppeal under section 9 of the aforesaid Act. The appeal was heard by the Additional District Judge. He held that the lease deed (A) executed in 1940 by the Government in favor of the Sanatan Dharam Sabha did not constitute sufficient evidence to establish the title of the Government with regard to the land in dispute and no other evidence existed on the file to show that the land in dispute constituted public premises as defined by the Act. The learned Judge further observed that in order to get the petitioner before us evicted from the premises, it was imperative on the part of the Government to establish that the disputed property was covered by the term 'public premises' as defined in the Act, and in the opinion of the learned Additional District Judge the Government had failed in this behalf in a miserable manner. The learned Judge further observed that the Estate Officer while ordering the eviction did not apply his mind to find out in a conclusive manner as to whether the Government had any title in the suit property or not. As a result he allowed the appeal and set aside the order of the Estate Officer, but remanded the case to him with the direction to take fresh evidence from both the parties and decide the matter on merits.
(5) This order of remand has been assailed by the petitioner in this writ petition. Mr. Madan Bhatia, learned counsel for the petitioner has raised three contentions, namely (1) The Additional District Judge acting as the appellate Officer under the Act was a persona designata and not a court : (2) The appellate Officer did not have any inherent power to order remand of the case to the Estate Officer ; and (3) In any view of the matter no remand could legally be ordered for production of fresh evidence and fresh trial and so the remand order must be quashed.
(6) With regard to the second contention, Mr. Bhatia has submitted that section 9(4) of the Act provides that every appeal under the section shall be disposed of by the appellate Officer as expeditiously as possible and the procedure prescribed by statutory rule 9 deals with the filing of the memorandum of appeal accompanied by a copy of the impugned order and issue of the notices to the Estate Officer, appellant & to the Head of the Department or Authority, but it does not deal with the powers which may be exercised by the appellate Officer in deciding the appeal and, thereforee, the contention is that the appellate Officer had no power to order any remand, In our opinion, the submission of the counsel is too narrow. Disposal of the appeal does not consist merely of allowing or dismissal of the appeal, but it may be disposed of in any manner known to law, e.g. dismissal in default of prosecution or appearance. The question of dismissal in default of appearane has been considered by a Division Bench consisting of ourselves in a detailed judgment in Dr. K.R.K. Talwar v. Union of india, C.W. 554 of 1967, decided on 24th November, 1976. This power would obviously include a power to order remand. The reason is that if the appellate Officer finds that the trial Officer has committed some error, as a result of which his order be not sustainable it will be open to the appellate Officer to remedy the defect and direct the first authority to act according to law and decide the matter afresh. The appellate authority by the very nature of the exercise of its jurisdiction possesses all the powers possessed by the first authority, but it also possesses the powers to cure the error and make the first authority act according to the prescribed procedure or provisions of law. The word 'remand' is derived from the Latin word 'remandare'. It means recommit and its dictionary meaning is to send back' or 'reconsign'. The exercise of appellate jurisdiction, thereforee, includes the power to commit the case back to the first authority to decide it according to law.
(7) Certain authorities were cited about the inherent power of the court to order remand. So far as the Code of Civil Procedure is concerned, the powers of remand are derived from section 107 of the Code of Civil Procedure, which provides that an appellate court shall have power (a) to determine a case finally : (b) to remand a case ; (e) to frame issues and refer them for trial ; and (d) to take additional evidence or to require such evidence to be taken. The powers under section 107 are exercisable subject to prescribed conditions or limitations. Order 41 of the Code prescribes the conditions and limitations on exercise of power of remand, which are contained in Rules 23 and 25. So far as the Punjab and Delhi are concerned. Rule 23A has been inserted in Order 41, which provides for remand of cases in circumstances other than those prescribed by Rule 23. In the High Courts where similar rule dose not exist, an inherent power of remand in the appellate court has been recognised. In Mahadeo (Prasad) Saraf v. S. K. Srivastava, it was held that the High Court has in a writ appeal a power to order remand of the case to the trial court. In S. Rajeshwer Rao v. The Collector (Land Acquisition officer) Hyderabad, the Supreme Court observed in para 4 that the order of remand challenged before the Supreme Court was not warranted either by Order 41 Rule 23 of the Code of Civil Procedure nor could it be supposed as made under section 151 of the Code. This indicates recognition of the inherent power of the appellate court to pass an order of remand in appropriate cases.
(8) In our opinion, although the power of remand is inherent in the appellate authorities exercising judicial or quasi-judicial functions, the same are to be exercised in accordance with the well established principles of law. These principles are carefully embodied in the Code of Civil Procedure and may be readily deduced from its provisions. They have been found for generations to be rules of procedure highly conductive to just decisions of cases although the hardship and technicalities of the rules do not strictly apply to quasi-judicial authorities (see J. K. Iron & Steel Co. Ltd. v.Iron a d Steel : (1956)ILLJ227SC & Martin Burn Ltd. v. R.N. Banerji, Mazdoor Union'. Hence the order of retrial after remand may be made even in exercise of inherent jurisdiction where the court of appeal is satisfied that there has been no proper trial or no complete or effectual adjudication of the proceedings and the party complaining of has suffered material prejudice on that account. Such an order may also be made to remedy an abuse of the process of the court.
(9) This takes us to the consideration of the third contention of Mr. Bhatia. It has time and again and consistently been held that no power vests in the appellate court to remand cases for rehearing or obtaining fresh evidence by the express provision of the Code of Civil Procedure nor inherently to remand cases for obtaining fresh evidence and retrial. In S.Rajeshwar Rao's case (supra) the High Court found that the materials on the record were scanty and it remanded the case to the City Civil Court to decide the matter afresh. This order of remand was quashed by the Supreme Court on the ground that the appellate court had to decide the matter on the evidence on record and it could not direct the lower court to do so and that the order of remand was not legally sustainable. In Seth Anand Kamar v. Smt. Adhash Kant', the court quoted with approval its decision in A. Shankararamaiah v. M.S. Lakshminarayanamoorthi', C.A. 611 of 1970, where it had held that the power to order retrial after remand could not be exercised merely because the appellate court was of the view that the parties who could lead better evidence in the court of first instance had failed to do so and a trial de novo after setting aside a final order passed by the court of first instance might thereforee, be made only in exceptional circumstances, where there had been no real trial of the proceedings, or where allowing the order to stand would result in abuse of the process of court. In other words, where there had been no proper trial or no complete or eflectual adjudication of the proceeding and the party complaining of the error or omission or irregularity had suffered material prejudice on that account. The court further observed that it was a serious matter to order the retrial of a case which meant, considerable waste of public time and retrial could b3 ordered only in exceptional circumstances. Similarly, in Subhendu Prasad Roy Choudhury v. Teja Bai it was held that it was only in exceptional cases that the High Court may set aside the decrees of the courts below and direct a fresh hearing only where there had been no real trial of the dispute at the earlier hearing.
(10) This view has also been adopted by the various High Courts in the country. In Nabin Pandey v. Indian Tube Company (1953) Ltd. it was held that wholesale remand was illegal. In Jethalal Motilal v. The State of Gujrat, it was held that no remand could be ordered to fill up the lacuna in the evidence of the plaintiff.
(11) From the aforesaid authorities, the rule of law is clearly established that there cannot be an order of remand for retrial on fresh evidence excepting in rare circumstances where there has been no proper or regular trial and prejudice has been caused, as has been observed by the Supreme Court. In the instant case, the Government had led all its evidence and no request had ever been made on its behalf to produce any further evidence or have another opportunity to do so. Even in the lower appellate court, the Union of India did not express any such intention and it contented itself by production of two pieces of evidence, namely Ex. A 1 and A2. Both of them have been found by the lower appellate court to be wholly insufficient to establish the title of the Government, and as noticed above, it observed that the Government, had miserably failed to establish that the land in dispute constituted public premises. Perhaps the Government does not possess any other evidence to substantiate its claim. Even in regard to the extent of the land in dispute there has been a serious difference. The petitioner claimed that he was in possession of 40' x 22 'of land, while Government claimed out of it only 15'x 15', and it never produced any other document of title excepting the lease granted by it to Sanatan Dharam to which the petitioner was not a party. The said evidence did not carry conviction with the lower appellate officer. As such on the finding that the land in dispute was not public premise, the appellate Officer had a duty to allow the appeal and set aside the order of the Estate Officer for obtaining fresh evidence from both the parties. In our opinion, the observations of the Supreme Court that after the trial had been concluded, it is waste of public time and money to order a fresh trial aptly apply to the facts of the case. We, thereforee, find that the order passed by the Additional District Judge in ordering remand in the circumstances of the case suffers from a jurisdictional order on the face of the record and his order to that extent is not sustainable.
(12) As a result, the writ petition is allowed. The order of the Additional District Judge, dated 3rd February, 1966 is quashed to the extent he ordered remand of the case to the Estate Officer for fresh trial. His order so far as allowing the appeal and setting aside the order of the Estate Officer is concerned, is not disturbed.