Code of Civil Procedure, 1908 | Order 41

Order XLI Rule 26 CPC - Findings, Evidence and Objections

Order XLI Rule 26 of the Code of Civil Procedure, 1908 governs how findings and evidence returned by the trial court become part of the suit record, how parties may object to those findings, and when the appellate court proceeds to decide the appeal.

Text of Order XLI Rule 26 CPC

Official source: India Code - Code of Civil Procedure, 1908 (PDF).

Meaning and scope of Rule 26

Rule 26 operates principally with Order XLI Rule 25. When an appellate court finds that an essential factual issue was not framed, tried or decided, Rule 25 permits it to refer that issue to the court whose decree is under appeal. The lower court then takes the required evidence and returns its reasoned findings to the appellate court.

Rule 26 supplies the next procedural steps: the returned material becomes part of the suit record, parties have an opportunity to object within the period set by the appellate court, and the appellate court thereafter determines the pending appeal.

Rule 26(1) - Evidence, findings and objections

1. Inclusion in the record: Evidence taken and findings returned pursuant to the reference form part of the suit record considered in the appeal.
2. Right of either party to object: Either party may submit a memorandum of objections to any returned finding.
3. Time fixed by appellate court: Rule 26 does not prescribe a uniform number of days. The appellate court fixes the time for presenting objections.
4. Nature of objections: An objection may address the evidence, factual appreciation or reasoning underlying a returned finding, subject to the scope of the reference and applicable procedural directions.

The memorandum of objections under Rule 26 concerns findings returned after a Rule 25 reference. It should not be confused with a respondent's cross-objection to a decree under Order XLI Rule 22.

Rule 26(2) - Final determination of appeal

After the period allowed for objections expires, the appellate court must proceed to determine the appeal. The findings returned by the trial court do not themselves finally dispose of the appeal. The appellate court considers the record, any objections and the applicable law before pronouncing its own judgment.

The rule requires the appellate court to proceed after the objection period; it does not prescribe an automatic outcome or deem the returned findings conclusively binding on the appellate court.

Procedure following a reference under Rule 25

1. The appellate court identifies an essential omitted issue or question of fact and, if necessary, refers it for trial under Rule 25.
2. The trial court records the required additional evidence and returns its findings with reasons within the period fixed or extended by the appellate court.
3. The returned evidence and findings are included in the suit record under Rule 26(1).
4. Parties may file memoranda objecting to the findings within the period fixed by the appellate court.
5. On expiry of that period, the appellate court proceeds to decide the appeal under Rule 26(2).

Related provisions of the CPC

Section 107: Sets out the appellate court's powers, including determining a case finally, remanding a case, framing issues and referring them for trial, and taking or requiring additional evidence, subject to prescribed conditions.

Order XLI Rule 24: Permits final determination where the evidence already on record is sufficient, even if the trial court decided the matter on a different ground.

Order XLI Rule 25: Authorises a limited reference of essential omitted issues or questions of fact for findings from the trial court.

Order XLI Rule 26A: Requires the appellate court, when remanding under Rules 23 or 23A or referring issues under Rule 25, to fix a date for the parties to appear before the lower court for directions on further proceedings.

Order XLI Rules 27 to 29: Regulate the exceptional admission, taking and scope of additional evidence in appeal.

Order XLI Rule 31: Prescribes the contents of the appellate judgment, including points for determination, decisions and reasons.

Rule 25 reference and full remand

A Rule 25 reference ordinarily sends specified issues for findings while the appeal remains pending before the appellate court. By contrast, remand under Order XLI Rules 23 or 23A involves sending the case back for further proceedings or retrial in circumstances specified by those rules. The correct procedure depends on whether the existing record permits final disposal, a limited factual inquiry is needed, or retrial is necessary.

Frequently asked questions

Can either party object to findings returned by the trial court?

Yes. Rule 26(1) expressly allows either party to present a memorandum of objections to any finding within the time fixed by the appellate court.

Is there a statutory 30-day period for objections under Rule 26?

No fixed 30-day period is stated in Rule 26. The appellate court fixes the period, subject to applicable procedural directions.

Does the trial court decide the appeal after a Rule 25 reference?

No. The trial court returns evidence and reasoned findings. The appellate court retains responsibility for determining the appeal under Rule 26(2).

Are Rules 26 and 27 the same?

No. Rule 26 addresses returned findings, their inclusion in the record and objections. Rule 27 governs when additional evidence may be admitted in an appeal.

Legal note: This is a general explanation of the central CPC provisions. Applicable state amendments, High Court rules and case-specific orders should also be checked.