CPC Order 41 Rule 23A - Appellate Court Can't Remand Suit For De Novo Trial Merely Because A Particular Evidence Has Not Been Adduced : Supreme Court

The Supreme Court, on Monday, held that High Courts ought not to remand a matter for trial de novo without recording any explanation as to on what ground the decree was being reversed by it.

The Court further observed that denovo trial cannot be ordered merely because a particular evidence has not been adduced. If one party has not produced evidence, then adverse inference can be drawn against them, but that is not a ground to remand the matter for fresh trial.

"...merely because a particular evidence which ought to have been adduced but had not been adduced, the Appellate Court cannot adopt the soft course of remanding the matter"

A Bench comprising Justice Dinesh Maheshwari and Justice Sudhanshu Dhulia set aside an order of Kerala High Court, whereby it had remanded a matter for trial de novo without adverting to the findings of the Trial Court and without specifying how the findings recorded by the Trial Court was unjustified.

Factual Background

One Zeenath filed a civil suit against Sirajudheen and her four sisters. The suit property was owned by Zeenath’s father and after his demise a partition deed was executed and the property was in joint possession and enjoyment of the Zeenath and the other sisters. A partnership deed was executed amongst the respondents to run the cinema theatre on the premises. Zeenath was forced, by the husbands of three of her sisters, to reach the office of Sub Registrar for execution of a security bond in favour of a film distributor. Accordingly, she executed the same. Later, when Zeenath enquired she was informed that her share in the property had been sold off. She realised that she was made to execute a sale deed instead of a security document. Another civil suit was filed for prohibitory injunction. Both the suits were decided together and dismissed by a common judgment. There were two other suits where Zeenath’s sisters sought partition of the cinema theatre and the shopping complex on the suit property. These two suits were decreed in favour of the sisters. Zeenath challenged the four decisions of the Trial Court in appeal. The High Court was of the opinion that sufficient evidence was not on record for the Trial Court to reach a conclusion and the High Court considered it appropriate to give an opportunity to adduce further evidence for fresh consideration.

Issue before the Supreme Court

Whether the High Court has been justified in remanding the matter for trial de novo?

Analysis by the Supreme Court

The Supreme Court noted that the High Court has not specified as to why it opined that the findings of the Trial Court were unjustified. Referring to the provisions empowering an Appellate Court to pass an order of remand, particularly Rule 23 of Order XLI CPC, it noted that the scope of the same was narrow and cannot be applied to the present case as the suit has not been disposed of on a preliminary point. Again, if the remand was under Rule 23A then the necessary requirement that “the decree is reversed in appeal and a re-trial is considered necessary” had to be fulfilled. The Court noted that no reasoning in the High Court’s order as to why and on what basis the decree was revered by it. It observed -

“Obviously, the reversal has to be based on cogent reasons and for that matter, adverting to and dealing with the reasons that had prevailed with the Trial Court remains a sine qua non. Thus, remand in the present case cannot be held justified even in terms of Rule 23-A of Order XLI CPC.”

The Supreme Court was of the view that if courts find evidence in possession of a party that has not been produced it can assume that production of the same would be unfavourable to the person who withholds it as per illustration (g) of Section 114 of the Evidence Act. However, on the basis of the fact that an evidence that ought to have been adduced was not adduced, the High Court cannot remand the matter.

Case details

Sirajudheen v. Zeenath And Ors. Civil Appeal No. 1491 of 2023| Civil Appeal No. 1491 of 2023| 27th February, 2023| Justice Dinesh Maheshwari and Justice Sudhanshu Dhulia

Citation : 2023 LiveLaw (SC) 145

For Petitioner(s) M/S Srm Law Associates, AOR

For Respondent(s) Mr. James P. Thomas, AOR Mr. Liju V Stephen, Adv. Mrs. Indu Susan Jacob, Adv. Mr. Aock Kr Prasad, Adv. Mr. Ravi Sagar, Adv. Mr. I H Syed, Sr. Adv. Mr. Abid Ali Beeran P, AOR Mr. K M Firoz, Adv. Mr. Sarath S Janardanan, Adv.

Code of Civil Procedure 1909 - Order XLI Rule 23 - the scope of remand in terms of Rule 23 of Order XLI CPC is extremely limited - Para 11.2

Code of Civil Procedure 1909 - Order XLI Rule 23A- Necessary requirement for remand under Rule 23A is that the decree is reversed in appeal and a re-trial is considered necessary - the reversal has to be based on cogent reasons and for that matter, adverting to and dealing with the reasons that had prevailed with the Trial Court remains a sine qua non- Para 11.2

Indian Evidence Act 1872- Section 114- if courts find evidence in possession of a party that has not been produced it can assume that production of the same would be unfavourable to the person who withholds it as per illustration (g) of Section 114 of the Evidence Act. However, on the basis of the fact that an evidence that ought to have been adduced was not adduced, the High Court cannot remand the matter - merely because a particular evidence which ought to have been adduced but had not been adduced, the Appellate Court cannot adopt the soft course of remanding the matter-Para 14