SIRAJUDHEEN versus ZEENATH & ORS on 27 February 2023

SIRAJUDHEEN

v.

ZEENATH & ORS.

(Civil Appeal No. 1491 of 2023)

FEBRUARY 27, 2023

[DINESH MAHESHWARI AND SUDHANSHU DHULIA, JJ.]

Code of Civil Procedure, 1908 – Order XLI Rule 23, 23A, 24,33 – Remand for trial de novo by the High Court – Justified or not– The two civil suits filed by the plaintiff-respondent No. 1 forcancellation of sale deed and for prohibitory injunction weredismissed, the two other civil suits filed by her sisters seekingpartition of respective properties were decreed – These fourdecisions were challenged by the respondent No.1 in the High Courtby way of four appeals – The instant appeal is directed against thecommon judgment and order passed by the High Court, wherebythe appeal filed by the plaintiff-respondent no.1 against dismissalof her suit for cancellation of a sale deed and for a prohibitoryinjunction was disposed of with directions to the Trial Court to decidethe suit afresh after de novo trial, essentially with the observationthat the evidence necessary for proper determination of suit hadnot been brought on record - Whether the High Court was justifiedin remanding the matter for trial de novo – On appeal, held: TheHigh Court has not adverted to the findings of the Trial Courtpertaining to the present case and has not specified as to how thefindings recorded by the Trial Court were unsustainable orunjustified – The scope of remand in terms of Rule 23 of Order XLICPC is extremely limited and that provision is inapplicable becausethe suit in question had not been disposed of on a preliminary point– The remand in the present case cannot be held justified in termsof Rule 23-A of Order XLI CPC because there is no reasonwhatsoever available in the impugned judgment as to why and onwhat basis the decree was reversed by the High Court – The Courthas not specified as to what specific evidence was considerednecessary to enable it to pronounce judgment or for any substantialcause – Merely because the High Court could not reach to aconclusion on preponderance of probabilities, the evidence onrecord could not have been treated as insufficient so as to not

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Apronounce the judgment in terms of Rule 24 of Order XLI CPC –Further, merely because a particular evidence which ought to havebeen adduced but had not been adduced, the Appellate Court cannotadopt the soft course of remanding the matter – The remand of thesuit for trial de novo cannot be considered justified in the presentcase from any standpoint.B

Allowing the appeal, the Court

Held: 1. Real question calling for determination in thisappeal is as to whether the High Court has been justified inremanding the matter for trial de novo? [Para 8.1][13-D]C2. It could at once be noticed that in terms of Rule 33 of

2. It could at once be noticed that in terms of Rule 33 ofOrder XLI CPC, the Appellate Court is empowered to pass anydecree and to make any order which ought to have been passedor made; and which may be considered requisite in a case. Whilethe said Rule 33 prescribes general powers of the Court of appeal,Dthe specific powers of remand are prescribed in Rules 23 and23-A of Order XLI CPC. Hence, for the purpose of the case athand, reference to aforesaid Rule 33 remains inapposite. [Para10][16-H; 17-A]

3. With respect, what turns on the observations in theEimpugned judgment is that the High Court was unable to arriveat a conclusion on the basis of the material on record. However,fact of the matter remains that on the basis of the same materialon record, the Trial Court had indeed arrived at a definiteconclusion that the plaintiff had failed to establish her case andhence, the suit was liable to be dismissed. As indicatedFhereinabove, the High Court has not at all referred to the findingsof the Trial Court and it is difficult to find from the judgmentimpugned as to why at all those findings of the Trial Court werenot to be sustained or the decree was required to be reversed.[Para 11.1][17-E-F]G4. The scope of remand in terms of Rule 23 of Order XLI

4. The scope of remand in terms of Rule 23 of Order XLICPC is extremely limited and that provision is inapplicablebecause the suit in question had not been disposed of on apreliminary point. The remand in the present case could only becorrelated with Rule 23-A of Order XLI CPC and for its H

applicability, the necessary requirements are that “the decree isreversed in appeal and a re-trial is considered necessary”. Asnoticed hereinabove, there is no reason whatsoever available inthe impugned judgment as to why and on what basis the decreewas reversed by the High Court. Obviously, the reversal has tobe based on cogent reasons and for that matter, adverting to anddealing with the reasons that had prevailed with the Trial Courtremains a sine qua non. Thus, remand in the present case cannotbe held justified even in terms of Rule 23-A of Order XLI CPC.[Para 11.2]P17-G; 18-A-C]

5. None of the parties have sought any permission toadduce evidence nor the High Court has specified as to whatspecific evidence was considered necessary to enable it topronounce judgment or for any substantial cause. It does notappear from the judgment of the High Court if the plaintiff/respondent No. 1, ever projected that the Trial Court did notallow her to produce any evidence that was sought to be produced.It is also not borne out if any of the parties at all made out anycase for production of additional documents or oral evidence withreference to the applicable principles. Hence, the generalobservations of the High Court cannot be correlated with Rule27(1) either. [Para 12][18-C-E]

6. Trial Court had returned its findings on the basis ofevidence on record. Whether those findings are sustainable ornot is a matter entirely different and the High Court may examinethe same but merely because the High Court could not reach toa conclusion on preponderance of probabilities, the evidence onrecord could not have been treated as insufficient so as to notpronounce the judgment in terms of Rule 24 of Order XLI CPC.[Para 13][18-F-G]

7. Merely because a particular evidence which ought tohave been adduced but had not been adduced, the Appellate Courtcannot adopt the soft course of remanding the matter. [Para14][19-A-B]

8. Suffice it would be to sum up that for a few tentativeobservations about certain circumstances existing in favour ofthe plaintiff and certain other circumstances existing in favour of AB

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Athe defendants and then, with another observation that plaintiffwas a vital witness, the High Court was not justified in remandingthe matter for trial de novo without recording any finding if theplaintiff was prevented from examining herself or from adducingany other evidence as also without explaining as to on what groundthe decree was being reversed. [Para 15][19-C-D]B

Municipal Corporation, Hyderabad v. Sunder Singh(2008) 8 SCC 485 : [2008] 9 SCR 635 – relied on.

Sanjay Kumar Singh v. State of Jharkhand (2022) 7SCC 247 – held inapplicable.

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Case Law Reference

[2008] 9 SCR 635relied onPara 6

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1491of 2023.

DFrom the Judgment and Order dated 28.06.2019 of the High Courtof Kerala at Ernakulam in RFA No. 247 of 2014.

Mahabir Singh, Sr. Adv., Zulfiker Ali P. S., Sajeeb S., Ms. LakshmiSree P., M/s SRM Law Associates, Advs. for the Appellant.

James P. Thomas, Abid Ali Beeran P., Advs. for the Respondents.E

The Judgment of the Court was delivered by DINESH MAHESHWARI, J.

Leave granted.F2. This appeal is directed against the common judgment and orderdated 28.06.2019, passed by the High Court of Kerala at Ernakulaminsofar as relating to RFA No. 247 of 2014, whereby the appeal filed bythe plaintiff (respondent No.1 herein) against dismissal of her suit forcancellation of a sale deed and for prohibitory injunction was disposedof with directions to the Trial Court to decide the suit afresh after deGnovo trial, essentially with the observations that the evidence necessaryfor proper determination of the suit had not been brought on record.

3. In the impugned common judgment and order dated 28.06.2019,the High Court has decided four appeals arising out of four differentcivil suits but concerning the same contesting parties and involving inter-H

related issues. Though, the present appeal relates only to one of thoseappeals in the High Court, being RFA No. 247 of 2014 that arose fromOS No. 293 of 2012 in the Court of Subordinate Judge, Karunagapally(originally OS No. 390 of 2006 in the Court of Subordinate Judge, Kollam)but, for a proper comprehension of the facts, a brief reference to thesubject-matter of the said four civil suits and findings therein shall beapposite. The relevant factual and background aspects could thus benoticed, in brief, as follows:

3.1. The respondent No. 1 filed the subject civil suit (OS No. 293of 2012) against the present appellant as defendant No. 1 and otherrespondents, her sisters, as defendant Nos. 2 to 5, for setting asidea saledeed bearing No. 285 of 2006 dated 15.03.2006, registered in the OfficeofSubRegistrar,Karunagapally.

3.2. The suit schedule property, consisting of 54 Ares and 90 Sq.meters of land and the cinema theatre building thereupon, comprisedinBlock No. 5, Resurvey No. 551/3 ofAdinadu Village, KulashekharapuramPanchayat, Karunagapally Taluk, Kollam District, was originally ownedby father of the respondents; and after his demise, the respondents andtheir mother executed a partition deed bearing No. 291 of 2003, wherebythe suit schedule property was kept in joint possession andenjoyment ofthe respondents. A partnership deed was also executed amongst therespondents for running of the said cinema theatre and the husband ofrespondent No. 1 was managing the cinema theatre named ‘Tharangamtheatre’ on behalf of the partners.

3.3. As per the case of plaintiff-respondent No. 1, on 15.03.2006,the respective husbands of respondent Nos. 3 and 5asked her to reachthe Office of the Sub Registrar, Karunagapally for execution of a securitybond in favour of a film distributor; and though she made a request forpostponing the execution of such document because her husband wasoutof station, the husbands of respondent Nos. 3 and 5 insisted that the saidsecurity was to be executed on that particular day itself orelse, functioningof the cinema theatre would be affected. As the respondent No. 1 hadutmost faith and belief in them, she reached the Sub Registrar’s Office,and put her signatures on the document as required by them. On15.09.2006, when respondent No. 1 enquired about the accounts ofcinema theatre from respondent No. 5,it was informed that her share inthe said property had already been sold. On hearing the same, therespondent No. 1 rushed to the Office of the Sub Registrar for getting a A

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Acopy of the document executed on 15.03.2006 and, on going through thesame, she realized that she was made to sign on a sale deed and not ona security document as told to her earlier. Further, no consideration wasreceived by her and hence, the said sale deed was void and non est.

3.4. The suit aforesaid was duly contested by the defendants.BAfter framing of issues, the parties adduced documentary and oralevidence where, on behalf of the plaintiff-respondent No. 1, her husbandwas examined as PW-1 whereas a relative of her husbandwas examinedas PW-2; and on the other hand, in defendants’ evidence, the presentappellant was examined as DW-1 whereas the husband of respondentNo. 4was examined as DW-2.C

3.5. Apart from the above civil suit bearing OS No. 293 of 2012,the plaintiff-respondent No. 1filed another civil suit for prohibitoryinjunction, which was registered as OS No. 238 of 2012.Both these civilsuits, being OS No. 293 of 2012 and OS No. 238 of 2012 were decidedtogether by the Trial Court in its common judgment dated 28.01.2014.DAfter examining the evidence on record, the Trial Court rejected thecase of the plaintiff-respondent No. 1 with the findings, inter alia, thatthe circumstances placed on record did not probabilise the case that bydefrauding her, the husbands of her sisters got executed the sale document(Ex. A-1) while making her believe that it were a security document forEgetting new films. The Trial Court also found that no steps were takenby the plaintiff-respondent No. 1 to examine the Sub Registrar who hadregistered the sale deed whereupon she had put her signatures on beingallegedly made to believe it to be a security document; and she failed todischarge the burden of proof in terms of Section 103 of the IndianEvidence Act, 1872[1]. Without much elaboration, we may take note ofFthe relevant findings of the Trial Court as under: - “22…..So the aforesaid circumstance never probabalise the caseadvanced on part of plaintiff that by defrauding her the husbandsof D3 and D5 succeeded to execute Ext.A1 by making her believethat it was a security document for getting new films from aGdistributor as claimed….

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H1 Hereinafter referred to as ‘the Evidence Act’.

24. Though plaintiff is having the case that Ext.A1 is the result offraud, undue influence and coercion etc exerted upon her by thepersons whom she was having confidence, no steps has beentaken on the part of the plaintiff to examine the registrar whoregistered Ext.A1 sale deed wherein plaintiff has put her signaturebeing it as a security document for getting new films as madebelieve on the par to D3 and D5, though burden of proof is uponher as per Section 103 of Indian Evidence Act. So from theavailable evidence in my opinion the Ext. A1 sale deed cannot beset aside since it was voluntarily executed by the plaintiff in favourof D1. Hence I find these issues against the plaintiff.”

3.6. In view of the above, the Trial Court proceeded to dismissboth the civil suits, being OS No. 293 of 2012 and OS No. 238 of 2012,while leaving the parties to bear their own costs.

3.7. There had been two other civil suits, being OS No. 181 of2007 and OS No.497 of 2006, which were filed by the respondent Nos.2 to 5 of the present appeal (sisters of the respondent No. 1), seekingpartition respectively of theatre and land on one hand and shoppingcomplex on the other. These civil suits for partition, as filed by the foursisters of respondent No. 1, were decreed by the Trial Court.

3.8. For what has been noticed hereinabove, the net result hadbeen that while the two civil suits filed by the plaintiff-respondent No. 1for cancellation of sale deed and for prohibitory injunction were dismissed,theother two civil suits filed by her sisters seeking partition of respectiveproperties were decreed.These four decisions were challenged by therespondent No. 1 in the High Court by way of four appeals, being RFANo. 96 of 2012 (pertaining to OS No. 497 of 2006), RFA No. 287 of2010 (pertaining to OS No. 181 of 2007), RFA No. 238 of 2014 (pertainingto OS No. 238 of 2012) and RFA No. 247 of 2014 (pertaining to OS No.293 of 2012). All these four appeals were decided together by the HighCourt in its common judgment and order dated 28.06.2019.

4. As noticed, the present appeal relates only to RFA No. 247 of2014 (pertaining to OS No. 293 of 2012). Therefore, dilation on all thefactual aspects of the four civil suits and respective findings of the HighCourt may not be of direct relevance for the present purpose but, for thefact that they relate to cognate mattersand the appeals have been decidedby the common judgment, for a comprehension of the views of the High AB

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[2023] 5 S.C.R.

ACourt, it would be profitable to take a brief note of the findings in theimpugned judgment.

4.1. The High Court observed that the common issue arising fordetermination in the appeals was regarding the character of the subject-property namely, theatre with land and shopping complex with land afterBthe five sisters, i.e., respondent No. 1 and respondent Nos. 2 to 4 enteredinto the partnership arrangement. The High Court adverted to the questionas to whether the properties obtained by them under the partition wouldpartake the character of partnership assets after theformation ofpartnership; and took note of the principles as to how a property couldbe brought in as a partnership asset expressly or by conduct. The HighCCourtobserved that merely because separate properties of the partnerswere used for the business of the partnership, it would not entail apresumption that the properties were brought in as partnership assets.After dealing with the relevant clauses of the partnership deed as alsothe other two sale deeds dated 10.11.2004 and 17.01.2004, executedDjointly by five sisters, the High Court ultimately held that the propertiesobtained by these five sisters under the partition deed continued to beheld as co-ownership properties even after execution of the partnershipdeed dated 28.01.2003. The High Court, therefore, held the propertiesto be co-ownership properties and consequently, upheld the judgmentand decree of the Trial Court in relation to OS No. 497 of 2006 and OSENo. 181 of 2007 for partition of properties. The High Court observedand held as under: - “13. Having held the properties to be co-ownershipproperties, the suits OS 497/06 and OS 181/07 for partition of theproperties are liable to be decreed. The judgment and decree ofFthe trial court are only to be upheld and I do so.”

4.2. Reverting to the two civil suits filed by the respondent No. 1,the High Court, in the first place, referred to OS No. 238 of 2012, whereinthe plaintiff-respondent No. 1 had claimed prohibitory injunction againstthe defendants. It was noticed that the relief was claimedby her in theGcapacity of a partner of the firm against other partners. The High Courtobserved that the partnership was an unregistered one and, therefore,the suit was barred under Section 69(1) of the Indian Partnership Act,1932. Hence, the decree of the Trial Court dismissing the suit (OS No.238 of 2012) was affirmed.

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5. After dealing with the aforesaid three civil suits, the High Courtreferred to the questions involved in OS No. 293 of 2012 and noted thegrounds on which the relief was claimed for cancellation of the saledeed. The High Court summarised the grounds of challenge as follows:- “17. In OS 293/12 from which RFA 247/14 arises, the reliefclaimed is for setting aside Ext.A1 Sale Deed. The grounds onwhich the sale deed is sought to be set aside are: - (a) The property being a partnership asset, the interest of apartner in a specific item of partnership property is inalienable.(AddankiNarayanappa v. Bhaskara Krishnappa (dead) andothers AIR 1966 SC 1300).

(b) The terms of the partnership deed expressly prohibits apartner from alienating his share in the partnership without theconsent of the other partners.

(c) “Non est factum” – the plaintiff was made to believethat she was executing a security deed for the distributionship ofa film; she never intended to execute a Sale Deed.”

5.1. The first two grounds aforesaid were rejected by the HighCourt with reference to the fact that the property in question was a co-ownership property and not a partnership asset; and what was purportedto be conveyed under the sale deed in question (Ex. A-1) was 1/5[th] rightof the plaintiff as the co-owner of the property and it was not in theassignment of the right of a partner. The High Court, therefore, rejectedthese two grounds. Moving on to the third ground pertaining to non estfactum, the High Court observed that on the evidence available on record,there were certain circumstances leaning in favour of the plaintiff andthere wereother circumstances leaning in favour of the genuineness ofthe sale. The observations of the High Court as regards the competingsets of evidence read as under: - “21. On the evidence available, certain circumstances leanin favour of the plaintiff. According to the defendants, the husbandof the plaintiff was acting as the Manager of the firm. On the dayon which Ext.A1 sale deed was executed, admittedly he was outof station. The extreme urgency for execution of Ext.A1 on thatday, in his absence, has not been brought out. Ext.A1 sale deed isstated to have been executed pursuant to an agreement for saledated 23.11.05. The agreement for sale is claimed to have been A

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executed by all the five sisters together in favour of the firstdefendant – Sirajudeen. The execution of the agreement for saleis disputed by the plaintiff. Though the alleged agreement for salerelates to the interests of all the sisters. Ext.A1 sale relates to therights of the plaintiff alone. This is under normal circumstancesimprobable. The defendants set up a case that the proposedpurchaser Sirajudheen sought for time for completing the saleand that the husband of the plaintiff was not agreeable and it wasunder such circumstances that Ext.A1, regarding the plaintiff’sshare alone, was executed. There is nothing to indicate that theplaintiff or her husband were in urgent need of money. After havingentered into an agreement for sale in respect of a property, underordinary circumstances a prudent purchaser would not purchasea mere 1/5 shares out of the property especially when the subjectmatter is a theatre. Further, though Ext.A1 sale deed recites thesale consideration as 6 lakhs, according to the defendants, thetotal consideration paid for Ext.A1 was 50 lakhs. There isabsolutely no evidence to prove the passing of consideration.According to the plaintiff, no consideration has passed since nosale deed was under contemplation. Relying on the decision ofthis Court in Pathu v. Katheesa Umma, [1990(2) KLT SN.51],it is argued by the respondents that since the document is aregistered one, its due execution is to be presumed. However, asheld in Ponnan v. Kuttipennu[1987 (2) KLT 455], when theexecution is denied, registration does not amount to proof ofexecution.

22. As against the above circumstances, there are variouscircumstances, as pointed out by the defendant, which favour thegenuiness of the sale. In addition to Ext.A1 sale deed, Ext.B17sale note was executed regarding the furniture and otherequipments in the theatre. This probabilises the execution of Ext.A1sale. According to the plaintiff, the execution and registration ofExt.A1 did not take place at the Sub Registrar’s Office; she wasmade to affix signatures while she was at the ground floor of thebuilding. However, the Sub Registrar or the Document writer havenot been examined. The document writer is the same person whoexecuted sale deed in respect of the other two items(items 1 and4) that belonged to the sisters under the partition. Though inparagraph 3 of the plaint, it is alleged that the brother of the plaintiff’s husband accompanied the plaintiff to the SRO, he hasnot been examined. The plaintiff who is said to have beendefrauded has not stepped into the witness box. Though underSection 120 of the Indian Evidence Act, the husband may be acompetent witness to depose on behalf of wife, in the nature ofthe allegations as made, the plaintiff was a vital witness and hernon-examination looms large.”

5.2. After the observations aforesaid, the High Court expressedthat the evidence necessary for proper determination of the suit had notbeen brought on record; and that the evidence on record was insufficientto arrive at a proper finding in favour of or against the sale deed. Forthese observations, the High Court considered it appropriate that theparties be given an opportunity to adduce further evidence and the matterbe considered afresh. The High Court concluded on the matter with thefollowing observations and directions: - “23. From the above, I notice that evidence necessary fora proper determination of the suit has not been brought on record.The evidence on record is insufficient to arrive at a proper findingin favour of or against Ext.A1 Sale Deed. Material witnesseshave not been examined. No evidence has been brought in withregard to passing of consideration. In the circumstances I am ofthe opinion that it would only be appropriate if the parties aregiven an opportunity to adduce further evidence and the matterbe considered afresh. The decree and judgment in OS 293/12 isto be set aside and the suit remanded back to the trial court fordisposal de novo.

In the result, RFA Nos.96/12, 827/10, 238/14 are dismissed,but without costs. RFA 247/14 is allowed. The judgment and decreein OS 293/13 is set aside and the suit is remitted back to the trialcourt for disposal de novo after affording opportunity to all theparties to adduce further evidence. Parties to appear before thetrial court on 24.07.2019.”

6. Assailing the aforesaid judgment and order dated 28.06.2019,learned counsel for the appellant has strenuously argued that want ofproduction of sufficient evidence had been a failure on the part of plaintiff-respondent No. 1 to prove her case but this failure on her part cannot bea ground to put the matter into another round of proceedings in the TrialCourt. It has also been submitted that the High Court ought not to have A

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Aremanded the suit for a fresh trial while requiring the parties to adducefresh evidence because neither any ground was pleaded nor any reliefwas sought to that effect. Learned counsel would elaborate that it hadnot been the case of the plaintiff-respondent No. 1 that the Trial Courtfailed to consider any evidence adduced by her or that she could notproduce any vital piece of evidence for any valid reason. On the contrary,Bshe neither got examined herself nor examined the Sub Registrar, whohad registered the sale deed; and rather, the plaintiff’s husband,whowas an attesting witness to the earlier agreement for sale, was examinedin evidence on her behalf as PW-1. With reference to illustration (g) toSection 114 of the Evidence Act, learned counsel for the appellant hasCargued that adverse inference ought to have been drawn against theplaintiff-respondent No. 1 for not presenting herself in the witness-box,particularly when the allegations of fraud were sought to be made thebasis of her claim. Learned counsel has also submitted that none of theelements of proviso (1) to Section 92 of the Evidence Act having beenestablished,the Trial Court, after appreciation of evidence, took aDreasonable view of the matter while finding that the circumstances wereprobabilising the case of the defendant-appellant. Hence, for the suithaving rightly been dismissed, there was no reason to remand the casefor a trial de novo.Learned counsel has referred to and relied upon thedecision of this Court in the case of Municipal Corporation, HyderabadEv. Sunder Singh: (2008) 8 SCC 485.

7. Per contra, with reference to the background aspects, thelearned counsel for the plaintiff-respondent No.1 has vehemently arguedthat the sale deed in question is a void document as no considerationwas passed on to her and hence, the same is liable to be set aside.FAccording to the learned counsel, when the Appellate Court came to theconclusion that necessary evidence for proper determination of suit hadnot been brought on record, it had wide and ample powers to even suomotu remand the matter to the Trial Court; and the High Court cannotbe faulted in adopting this course in the present matter for securing theends of justice. Learned counsel has referred to the provisions containedGin Rules 23, 23-A, 24, 27(1)(b) and 33 of Order XLI of the Code of CivilProcedure, 1908[2] to submit that the High Court has rightly remanded thematter after coming to the conclusion that the evidence on record wasinsufficient to arrive at a proper finding in favour of or against the sale deed. It has also been submitted that as per Section 120 of the EvidenceAct, husband of the plaintiff-respondent No. 1was a competent witnessas he was the Manager of the theatre and was having knowledge aboutall the affairs of the theatre and hence, it was entirely immaterial thatthe plaintiff-respondent No. 1 did not enter the witness-box. Learnedcounsel has reiterated the stand of the plaintiff that she was made tosign on the sale deed as if it were a security document and therefore, thesale deed, suffering from misrepresentation by the defendants as alsowant of consideration, deserves to be set aside. It is also submitted thatthe alleged agreement for sale dated 23.11.2005 is also a disputeddocument and no reliance could be placed on the same. Learned counselhas referred to and relied upon a decision of this Court in the case ofSanjay Kumar Singh v. State of Jharkhand: (2022) 7 SCC 247.

8. We have given anxious considerations to rival submissions andhave examined the record with reference to the law applicable.

8.1. Though learned counsel for the parties have made a fewsubmissions touching upon the merits of the case but, we would leavethose submissions concerning merits of the case at that only becausethe real question calling for determination in this appeal is as to whetherthe High Court has been justified in remanding the matter for trialde novo?

9. As regards the question calling for determination in the presentappeal and with reference to the submissions made, we may, in the firstplace, take note of the relevant provisions of law and the expositions ofthis Court in the cited decisions.

9.1. The provisions contained in Rules 23, 23-A, 24, 27 and 33of Order XLI CPC read as under: - “23. Remand of case by Appellate Court.-Where the Courtfrom whose decree an appeal is preferred has disposed of thesuit upon a preliminary point and the decree is reversed in appeal,the Appellate Court may, if it thinks fit, by order remand the case,and may further direct what issue or issues shall be tried in thecase so remanded, and shall send a copy of its judgment andorder to the Court from whose decree the appeal is preferred,which directions to re-admit the suit under its original number inthe register of civil suits, and proceed to determine the suit; and ABC

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the evidence (if any) recorded during the original trial shall, subjectto all just exceptions, be evidence during the trial after remand.

23-A. Remand in other cases.-Where the Court from whosedecree an appeal is preferred has disposed of the case otherwisethan on a preliminary point, and the decree is reversed in appealand a re-trial is considered necessary, the Appellate Court shallhave the same powers as it has under rule 23.

24. Where evidence on record sufficient, Appellate Courtmay determine case finally.-Where the evidence upon the recordis sufficient to enable the Appellate Court to pronounce judgment,the Appellate Court may, after resettling the issues, if necessary,finally determine the suit, notwithstanding that the judgment ofthe Court from whose decree the appeal is preferred hasproceeded wholly upon some ground other than that on which theAppellate Court proceeds.

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-27. Production of additional evidence in Appellate Court.(1) The parties to an appeal shall not be entitled to produceadditional evidence, whether oral or documentary, in the AppellateCourt. But if- (a) the Court from whose decree the appeal is preferredhas refused to admit evidence which ought to have beenadmitted, or (aa) the party seeking to produce additional evidence,establishes that notwithstanding the exercise of duediligence, such evidence was not within his knowledgeor could not, after the exercise of due diligence, beproduced by him at the time when the decree appealedagainst was passed, or (b) the Appellate Court requires any document to beproduced or any witness to be examined to enable it topronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to beproduced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced byan Appellate Court, the Court shall record the reason for itsadmission.

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33. Power of Court of Appeal-The Appellate Court shall havepower to pass any decree and make any order which ought tohave been passed or made and to pass or make such further orother decree or order as the case may require, and this powermay be exercised by the Court notwithstanding that the appeal isas to part only of the decree and may be exercised in favour of allor any of the respondents or parties, although such respondentsor parties may not have filed any appeal or objection and may,where there have been decrees in cross-suits or where two ormore decrees are passed in one suit, be exercised in respect of allor any of the decrees, although an appeal may not have been filedagainst such decrees:

Provided that the Appellate Court shall not make any order undersection 35A, in pursuance of any objection on which the Courtfrom whose decree the appeal is preferred has omitted or refusedto make such order.”

9.2. While explaining the scope of Rules 23 and 23-A of OrderXLI CPC, in the case of Municipal Corporation, Hyderabad (supra),this Courthas observedas under: - “32. A distinction must be borne in mind between diverse powersof the appellate court to pass an order of remand. The scope ofremand in terms of Order 41 Rule 23 is extremely limited. Thesuit was not decided on a preliminary issue. Order 41 Rule 23was therefore not available. On what basis, the secondary evidencewas allowed to be led is not clear. The High Court did not setaside the orders refusing to adduce secondary evidence.

33. Order 41 Rule 23-A of the Code of Civil Procedure is alsonot attracted. The High Court had not arrived at a finding that aretrial was necessary. The High Court again has not arrived at afinding that the decree is liable to be reversed. No case has beenmade out for invoking the jurisdiction of the Court under Order 41Rule 23 of the Code.

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16SUPREME COURT REPORTS

A34. An order of remand cannot be passed on ipse dixit of thecourt…...”

9.3. In the case of Sanjay Kumar Singh (supra) relied upon bythe learned counsel for the respondent No. 1, this Court has observed asunder: - B

“7. It is true that the general principle is that the appellate courtshould not travel outside the record of the lower court and cannottake any evidence in appeal. However, as an exception, Order 41Rule 27CPC enables the appellate court to take additional evidencein exceptional circumstances. It may also be true that the appellateCcourt may permit additional evidence if the conditions laid downin this Rule are found to exist and the parties are not entitled, as ofright, to the admission of such evidence. However, at the sametime, where the additional evidence sought to be adduced removesthe cloud of doubt over the case and the evidence has a directand important bearing on the main issue in the suit and interest ofDjustice clearly renders it imperative that it may be allowed to bepermitted on record, such application may be allowed. Even, oneof the circumstances in which the production of additional evidenceunder Order 41 Rule 27CPC by the appellate court is to beconsidered is, whether or not the appellate court requires theEadditional evidence so as to enable it to pronounce judgment orfor any other substantial cause of like nature.

8. As observed and held by this Court in A. Andisamy Chettiar v.A.SubburajChettiar [(2015)17 SCC 713], the admissibility ofadditional evidence does not depend upon the relevancy to theFissue on hand, or on the fact, whether the applicant had anopportunity for adducing such evidence at an earlier stage or not,but it depends upon whether or not the appellate court requiresthe evidence sought to be adduced to enable it to pronouncejudgment or for any other substantial cause. It is further observedthat the true test, therefore is, whether the appellate court is ableGto pronounce judgment on the materials before it without takinginto consideration the additional evidence sought to be adduced.”

10. It could at once be noticed that in terms of Rule 33 of OrderXLI CPC, the Appellate Court is empowered to pass any decree and tomake any order which ought to have been passed or made; and whichHmay be considered requisite in a case. While the said Rule 33 prescribes general powers of the Court of appeal, the specific powers of remandare prescribed in Rules 23 and 23-A of Order XLI CPC. Hence,for thepurpose of the case at hand, reference to aforesaid Rule 33 remainsinapposite. Having said so, we may proceed to examine if the order ofremand in the present case could be justified with reference to the otherreferred provisions of Order XLI CPC?

11. One of the striking features of the impugned judgment dated28.06.2019 is that even while dealing with a regular first appeal againstthe judgment and decree of the Trial Court, the High Court has not evenadverted to the findings of the Trial Court pertaining to the present caseand has not specified as to how the findings recorded by the Trial Courtwere unsustainable or unjustified. As noticed, in the impugned judgment,the High Court has narrated a few circumstances leaning in favour ofthe plaintiff (in paragraph 21) and then a few other circumstances whichfavour the genuineness of the sale in question (in paragraph 22) andthereafter, has observed that the evidence necessary for a properdetermination of the suit had not been brought on record; and that theevidence on record was insufficient to arrive at a proper finding in favouror against the sale deed in question. The High Court would furtherobserve that material witnesses have not been examined and no evidencehas been brought in with regard to passing of consideration.

11.1. With respect, what turns on the observations in the impugnedjudgment is that the High Court was unable to arrive at a conclusion onthe basis of the material on record. However, fact of the matter remainsthat on the basis of the same material on record, the Trial Court hadindeed arrived at a definite conclusion that the plaintiff had failed toestablish her case and hence, the suit was liable to be dismissed. Asindicated hereinabove, the High Court has not at all referred to the findingsof the Trial Court and it is difficult to find from the judgment impugnedas to why at all those findings of the Trial Court were not to be sustainedor the decree was required to be reversed.

11.2. After having taken note of the salient features of theimpugned judgment as also the significant omissions therein, if we referto the provisions empowering the Appellate Court to make an order ofremand, it is difficult to find any justification for remand by the HighCourt in the present case. As noticed, the scope of remand in terms ofRule 23 of Order XLI CPC is extremely limited and that provision isinapplicable because the suit in question had not been disposed of on a A

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Apreliminary point. The remand in the present case could only be correlatedwith Rule 23-A of Order XLI CPC and for its applicability, the necessaryrequirements are that “the decree is reversed in appeal and a re-trialis considered necessary”. As noticed hereinabove, there is no reasonwhatsoever available in the impugned judgment as to why and on whatbasis the decree was reversed by the High Court. Obviously, the reversalBhas to be based on cogent reasons and for that matter, adverting to anddealing with the reasons that had prevailed with the Trial Court remainsa sine qua non. Thus, remand in the present case cannot be held justifiedeven in terms of Rule 23-A of Order XLI CPC.

12. On the facts of the present case and the nature of order passedCby the High Court, the enunciations and observations in the case ofSanjay Kumar Singh (supra) are of no application whatsoever as noneof the parties have sought any permission to adduce evidence nor theHigh Court has specified as to what specific evidence was considerednecessary to enable it to pronounce judgment or for any substantial cause.DMoreover, it does not appear from the judgment of the High Court if theplaintiff-respondent No. 1 (appellant before the High Court), everprojected that the Trial Court did not allow her to produce any evidencethat was sought to be produced. It is also not borne out if any of theparties at all made out any case for production of additional documentsor oral evidence with reference to the applicable principles. Hence, theEgeneral observations of the High Court cannot be correlated with Rule27(1) either. With respect, we are constrained to apply the observationsof this Court in Municipal Corporation, Hyderabad (supra) to saythat the present order of remand has been passed only on ipse dixit ofHigh Court sans any reason or justification.F

13. It gets perforce reiterated that in the suit filed by respondentNo. 1, the Trial Court had indeed returned its findings on the basis ofevidence on record. Whether those findings are sustainable or not is amatter entirely different and the High Court may examine the same butmerely because the High Court could not reach to a conclusion onGpreponderance of probabilities, the evidence on record could not havebeen treated as insufficient so as to not pronounce the judgment in termsof Rule 24 of Order XLI CPC.

14. In regard to the want of any particular evidence, we mayobserve in the passing that if the Court finds any particular evidencedirectly within the control and possession of a party having not beenH

produced, the necessary consequences like those specified in illustration(g) to Section 114 of the Evidence Act[3] may follow but, merely becausea particular evidence which ought to have been adduced but had notbeen adduced, the Appellate Court cannot adopt the soft course ofremanding the matter. We would hasten to observe that we are notcommenting on the merits of the case either way. The observationsherein are only to indicate that the remand of the suit for trial de novocannot be considered justified in the present case from any standpoint.

15. For what has been discussed hereinabove, suffice it would beto sum upthat for a few tentative observations about certain circumstancesexisting in favour of the plaintiff and certain other circumstances existingin favour of the defendants and then,with another observation that plaintiffwas a vital witness, the High Court was not justified in remanding thematter for trial de novo without recording any finding if the plaintiff wasprevented from examining herself or from adducing any other evidenceas also without explaining as to on what ground the decree was beingreversed.

16. Accordingly, and in view of the above, this appeal succeedsand is allowed. The impugned judgment and order dated 28.06.2019,insofar as relating to RFA No. 247 of 2014 (pertaining to OS No. 293 of2012), is set aside; and the said appeal is restored for reconsideration bythe High Court in accordance with law. The parties through their respectivecounsel shall stand at notice to appear before the High Court on20.03.2023.

17. Having regard to the circumstances, there shall be no orderas to costs of the present appeal.

Ankit Gyan(Assisted by : Mayank Batra, LCRA)

Appeal allowed.

3 Illustration (g) to Section 114 of the Evidence Act reads under:-“The Court may presume –*********(g) That evidence which could be and is not produced would, if produced, beunfavourable to the person who withholds it;*********”

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