Sirajudheen vs Zeenath

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1491 OF 2023 (ARISING OUT OF SLP(CIVIL) NO. 22557 OF 2019)

SIRAJUDHEEN ….APPELLANT(S)

VERSUS

ZEENATH & ORS. ….RESPONDENT(S)

JUDGMENT

DINESH MAHESHWARI, J.

Leave granted.

2. This appeal is directed against the common judgment and order

dated 28.06.2019, passed by the High Court of Kerala at Ernakulam insofar

as relating to RFA No. 247 of 2014, whereby the appeal filed by the plaintiff

(respondent No. 1 herein) against dismissal of her suit for cancellation of a

sale deed and for prohibitory injunction was disposed of with directions to

the Trial Court to decide the suit afresh after de novo trial, essentially with

the observations that the evidence necessary for 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 different civil Signature Not Verified Neetu Khajuria Date: 2023.02.27 suits but concerning the same contesting parties and involving inter-related Digitally signed by

17:00:27 IST Reason:

issues. Though, the present appeal relates only to one of those appeals in

1 the High Court, being RFA No. 247 of 2014 that arose from OS 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 the subject-matter of the

said four civil suits and findings therein shall be apposite. The relevant

factual and background aspects could thus be noticed, in brief, as follows:

3.1. The respondent No. 1 filed the subject civil suit (OS No. 293 of

2012) against the present appellant as defendant No. 1 and other

respondents, her sisters, as defendant Nos. 2 to 5, for setting aside a sale

deed bearing No. 285 of 2006 dated 15.03.2006, registered in the Office of

Sub Registrar, Karunagapally.

3.2. The suit schedule property, consisting of 54 Ares and 90 Sq. meters

of land and the cinema theatre building thereupon, comprised in Block No.

5, Resurvey No. 551/3 of Adinadu Village, Kulashekharapuram Panchayat,

Karunagapally Taluk, Kollam District, was originally owned by father of the

respondents; and after his demise, the respondents and their mother

executed a partition deed bearing No. 291 of 2003, whereby the suit

schedule property was kept in joint possession and enjoyment of the

respondents. A partnership deed was also executed amongst the

respondents for running of the said cinema theatre and the husband of

respondent No. 1 was managing the cinema theatre named ‘Tharangam

theatre’ on behalf of the partners.

2 3.3. As per the case of plaintiff-respondent No. 1, on 15.03.2006, the

respective husbands of respondent Nos. 3 and 5 asked her to reach the

Office of the Sub Registrar, Karunagapally for execution of a security bond

in favour of a film distributor; and though she made a request for postponing

the execution of such document because her husband was out of station,

the husbands of respondent Nos. 3 and 5 insisted that the said security

was to be executed on that particular day itself or else, functioning of the

cinema theatre would be affected. As the respondent No. 1 had utmost faith

and belief in them, she reached the Sub Registrar’s Office, and put her

signatures on the document as required by them. On 15.09.2006, when

respondent No. 1 enquired about the accounts of cinema theatre from

respondent No. 5, it was informed that her share in the said property had

already been sold. On hearing the same, the respondent No. 1 rushed to

the Office of the Sub Registrar for getting a copy of the document executed

on 15.03.2006 and, on going through the same, she realized that she was

made to sign on a sale deed and not on a security document as told to her

earlier. Further, no consideration was received by her and hence, the said

sale deed was void and non est.

3.4. The suit aforesaid was duly contested by the defendants. After

framing of issues, the parties adduced documentary and oral evidence

where, on behalf of the plaintiff-respondent No. 1, her husband was

examined as PW-1 whereas a relative of her husband was examined as

PW-2; and on the other hand, in defendants’ evidence, the present

3 appellant was examined as DW-1 whereas the husband of respondent No.

4 was examined as DW-2.

3.5. Apart from the above civil suit bearing OS No. 293 of 2012, the

plaintiff-respondent No. 1 filed another civil suit for prohibitory injunction,

which was registered as OS No. 238 of 2012. Both these civil suits, being

OS No. 293 of 2012 and OS No. 238 of 2012 were decided together by the

Trial Court in its common judgment dated 28.01.2014. After examining the

evidence on record, the Trial Court rejected the case of the plaintiff-

respondent No. 1 with the findings, inter alia, that the circumstances placed

on record did not probabilise the case that by defrauding her, the husbands

of her sisters got executed the sale document (Ex. A-1) while making her

believe that it were a security document for getting new films. The Trial

Court also found that no steps were taken by the plaintiff-respondent No. 1

to examine the Sub Registrar who had registered the sale deed whereupon

she had put her signatures on being allegedly made to believe it to be a

security document; and she failed to discharge the burden of proof in terms

of Section 103 of the Indian Evidence Act, 1872 1 . Without much

elaboration, we may take note of the relevant findings of the Trial Court as

under: -

“22…..So the aforesaid circumstance never probabalise the case advanced on part of plaintiff that by defrauding her the husbands of D3 and D5 succeeded to execute Ext.A1 by making her believe that

1 Hereinafter referred to as ‘the Evidence Act’.

4 it was a security document for getting new films from a distributor as claimed….

*** *** ***

24. Though plaintiff is having the case that Ext.A1 is the result of fraud, undue influence and coercion etc exerted upon her by the persons whom she was having confidence, no steps has been taken on the part of the plaintiff to examine the registrar who registered Ext.A1 sale deed wherein plaintiff has put her signature being it as a security document for getting new films as made believe on the par to D3 and D5, though burden of proof is upon her as per Section 103 of Indian Evidence Act. So from the available evidence in my opinion the Ext. A1 sale deed cannot be set aside since it was voluntarily executed by the plaintiff in favour of D1. Hence I find these issues against the plaintiff.”

3.6. In view of the above, the Trial Court proceeded to dismiss both 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 of 2007 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), seeking partition

respectively of theatre and land on one hand and shopping complex on the

other. These civil suits for partition, as filed by the four sisters of respondent

No. 1, were decreed by the Trial Court.

3.8. For what has been noticed hereinabove, the net result had been

that while the two civil suits filed by the plaintiff-respondent No. 1 for

cancellation of sale deed and for prohibitory injunction were dismissed, the

other two civil suits filed by her sisters seeking partition of respective

properties were decreed. These four decisions were challenged by the

respondent No. 1 in the High Court by way of four appeals, being RFA No.

5 96 of 2012 (pertaining to OS No. 497 of 2006), RFA No. 287 of 2010

(pertaining to OS No. 181 of 2007), RFA No. 238 of 2014 (pertaining to 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 High Court in

its common judgment and order dated 28.06.2019.

4. As noticed, the present appeal relates only to RFA No. 247 of 2014

(pertaining to OS No. 293 of 2012). Therefore, dilation on all the factual

aspects of the four civil suits and respective findings of the High Court may

not be of direct relevance for the present purpose but, for the fact that they

relate to cognate matters and the appeals have been decided by the

common judgment, for a comprehension of the views of the High Court, it

would be profitable to take a brief note of the findings in the impugned

judgment.

4.1. The High Court observed that the common issue arising for

determination in the appeals was regarding the character of the subject-

property namely, theatre with land and shopping complex with land after

the five sisters, i.e., respondent No. 1 and respondent Nos. 2 to 4 entered

into the partnership arrangement. The High Court adverted to the question

as to whether the properties obtained by them under the partition would

partake the character of partnership assets after the formation of

partnership; and took note of the principles as to how a property could be

brought in as a partnership asset expressly or by conduct. The High Court

observed that merely because separate properties of the partners were

6 used for the business of the partnership, it would not entail a presumption

that the properties were brought in as partnership assets. After dealing with

the relevant clauses of the partnership deed as also the other two sale

deeds dated 10.11.2004 and 17.01.2004, executed jointly by five sisters,

the High Court ultimately held that the properties obtained by these five

sisters under the partition deed continued to be held as co-ownership

properties even after execution of the partnership deed dated 28.01.2003.

The High Court, therefore, held the properties to be co-ownership

properties and consequently, upheld the judgment and decree of the Trial

Court in relation to OS No. 497 of 2006 and OS No. 181 of 2007 for partition

of properties. The High Court observed and held as under: -

“13. Having held the properties to be co-ownership properties, the suits OS 497/06 and OS 181/07 for partition of the properties are liable to be decreed. The judgment and decree of the 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, wherein the

plaintiff-respondent No. 1 had claimed prohibitory injunction against the

defendants. It was noticed that the relief was claimed by her in the capacity

of a partner of the firm against other partners. The High Court observed

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.

7 5. After dealing with the aforesaid three civil suits, the High Court

referred to the questions involved in OS No. 293 of 2012 and noted the

grounds on which the relief was claimed for cancellation of the sale deed.

The High Court summarised the grounds of challenge as follows: -

“17. In OS 293/12 from which RFA 247/14 arises, the relief claimed is for setting aside Ext.A1 Sale Deed. The grounds on which the sale deed is sought to be set aside are: -

(a) The property being a partnership asset, the interest of a partner in a specific item of partnership property is inalienable.

(Addanki Narayanappa v. Bhaskara Krishnappa (dead) and others AIR 1966 SC 1300).

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

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

5.1. The first two grounds aforesaid were rejected by the High Court with

reference to the fact that the property in question was a co-ownership

property and not a partnership asset; and what was purported to be

conveyed under the sale deed in question (Ex. A-1) was 1/5th right of the

plaintiff as the co-owner of the property and it was not in the assignment of

the right of a partner. The High Court, therefore, rejected these two

grounds. Moving on to the third ground pertaining to non est factum, the

High Court observed that on the evidence available on record, there were

certain circumstances leaning in favour of the plaintiff and there were other

circumstances leaning in favour of the genuineness of the sale. The

observations of the High Court as regards the competing sets of evidence

read as under: -

8

“21. On the evidence available, certain circumstances lean in favour of the plaintiff. According to the defendants, the husband of the plaintiff was acting as the Manager of the firm. On the day on which Ext.A1 sale deed was executed, admittedly he was out of station. The extreme urgency for execution of Ext.A1 on that day, in his absence, has not been brought out. Ext.A1 sale deed is stated to have been executed pursuant to an agreement for sale dated 23.11.05. The agreement for sale is claimed to have been executed by all the five sisters together in favour of the first defendant – Sirajudeen. The execution of the agreement for sale is disputed by the plaintiff. Though the alleged agreement for sale relates to the interests of all the sisters. Ext.A1 sale relates to the rights of the plaintiff alone. This is under normal circumstances improbable. The defendants set up a case that the proposed purchaser Sirajudheen sought for time for completing the sale and that the husband of the plaintiff was not agreeable and it was under such circumstances that Ext.A1, regarding the plaintiff’s share alone, was executed.

There is nothing to indicate that the plaintiff or her husband were in urgent need of money. After having entered into an agreement for sale in respect of a property, under ordinary circumstances a prudent purchaser would not purchase a mere 1/5 shares out of the property especially when the subject matter is a theatre. Further, though Ext.A1 sale deed recites the sale consideration as ₹6 lakhs, according to the defendants, the total consideration paid for Ext.A1 was ₹50 lakhs. There is absolutely no evidence to prove the passing of consideration. According to the plaintiff, no consideration has passed since no sale deed was under contemplation. Relying on the decision of this Court in Pathu v. Katheesa Umma, [1990(2) KLT SN.51], it is argued by the respondents that since the document is a registered one, its due execution is to be presumed. However, as held in Ponnan v. Kuttipennu [1987 (2) KLT 455], when the execution is denied, registration does not amount to proof of execution.

22. As against the above circumstances, there are various circumstances, as pointed out by the defendant, which favour the genuiness of the sale. In addition to Ext.A1 sale deed, Ext.B17 sale note was executed regarding the furniture and other equipments in the theatre. This probabilises the execution of Ext.A1 sale. According to the plaintiff, the execution and registration of Ext.A1 did not take place at the Sub Registrar’s Office; she was made to affix signatures while she was at the ground floor of the building. However, the Sub Registrar or the Document writer have not been examined. The document writer is the same person who executed sale deed in respect of the other two items(items 1 and 4) that belonged to the sisters under the partition. Though in paragraph 3 of the plaint, it is alleged that the brother of the plaintiff’s husband accompanied the plaintiff to the SRO, he has not been examined. The plaintiff who is said to have been defrauded has not stepped into the witness box. Though under Section 120 of the Indian 9 Evidence Act, the husband may be a competent witness to depose on behalf of wife, in the nature of the allegations as made, the plaintiff was a vital witness and her non-examination looms large.”

5.2. After the observations aforesaid, the High Court expressed that the

evidence necessary for proper determination of the suit had not been

brought on record; and that the evidence on record was insufficient to arrive

at a proper finding in favour of or against the sale deed. For these

observations, the High Court considered it appropriate that the parties be

given an opportunity to adduce further evidence and the matter be

considered afresh. The High Court concluded on the matter with the

following observations and directions: -

“23. From the above, I notice that evidence necessary for a proper determination of the suit has not been brought on record. The evidence on record is insufficient to arrive at a proper finding in favour of or against Ext.A1 Sale Deed. Material witnesses have not been examined. No evidence has been brought in with regard to passing of consideration. In the circumstances I am of the opinion that it would only be appropriate if the parties are given an opportunity to adduce further evidence and the matter be considered afresh. The decree and judgment in OS 293/12 is to be set aside and the suit remanded back to the trial court for disposal 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 decree in OS 293/13 is set aside and the suit is remitted back to the trial court for disposal de novo after affording opportunity to all the parties to adduce further evidence. Parties to appear before the trial 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 of

production 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 be a

ground to put the matter into another round of proceedings in the Trial 10 Court. It has also been submitted that the High Court ought not to have

remanded the suit for a fresh trial while requiring the parties to adduce fresh

evidence because neither any ground was pleaded nor any relief was

sought to that effect. Learned counsel would elaborate that it had not been

the case of the plaintiff-respondent No. 1 that the Trial Court failed to

consider any evidence adduced by her or that she could not produce any

vital piece of evidence for any valid reason. On the contrary, she neither

got examined herself nor examined the Sub Registrar, who had registered

the sale deed; and rather, the plaintiff’s husband, who was an attesting

witness to the earlier agreement for sale, was examined in evidence on her

behalf as PW-1. With reference to illustration (g) to Section 114 of the

Evidence Act, learned counsel for the appellant has argued that adverse

inference ought to have been drawn against the plaintiff-respondent No. 1

for not presenting herself in the witness-box, particularly when the

allegations of fraud were sought to be made the basis of her claim. Learned

counsel has also submitted that none of the elements of proviso (1) to

Section 92 of the Evidence Act having been established, the Trial Court,

after appreciation of evidence, took a reasonable view of the matter while

finding that the circumstances were probabilising the case of the

defendant-appellant. Hence, for the suit having rightly been dismissed,

there was no reason to remand the case for a trial de novo. Learned

counsel has referred to and relied upon the decision of this Court in the

11 case of Municipal Corporation, Hyderabad v. Sunder Singh: (2008) 8

SCC 485.

7. Per contra, with reference to the background aspects, the learned

counsel for the plaintiff-respondent No.1 has vehemently argued that the

sale deed in question is a void document as no consideration was passed

on to her and hence, the same is liable to be set aside. According to the

learned counsel, when the Appellate Court came to the conclusion that

necessary evidence for proper determination of suit had not been brought

on record, it had wide and ample powers to even suo motu remand the

matter to the Trial Court; and the High Court cannot be faulted in adopting

this course in the present matter for securing the ends of justice. Learned

counsel has referred to the provisions contained in Rules 23, 23-A, 24,

27(1)(b) and 33 of Order XLI of the Code of Civil Procedure, 1908 2 to

submit that the High Court has rightly remanded the matter after coming to

the conclusion that the evidence on record was insufficient 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 Evidence Act, husband of the

plaintiff-respondent No. 1 was a competent witness as he was the Manager

of the theatre and was having knowledge about all the affairs of the theatre

and hence, it was entirely immaterial that the plaintiff-respondent No. 1 did

not enter the witness-box. Learned counsel has reiterated the stand of the

2 ‘CPC’, for short.

12 plaintiff that she was made to sign on the sale deed as if it were a security

document and therefore, the sale deed, suffering from misrepresentation

by the defendants as also want of consideration, deserves to be set aside.

It is also submitted that the alleged agreement for sale dated 23.11.2005

is also a disputed document and no reliance could be placed on the same.

Learned counsel has referred to and relied upon a decision of this Court in

the case of Sanjay Kumar Singh v. State of Jharkhand: (2022) 7 SCC

247.

8. We have given anxious considerations to rival submissions and

have examined the record with reference to the law applicable.

8.1. Though learned counsel for the parties have made a few

submissions touching upon the merits of the case but, we would leave

those submissions concerning merits of the case at that only because the

real question calling for determination in this appeal is as to whether the

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

9. As regards the question calling for determination in the present

appeal and with reference to the submissions made, we may, in the first

place, take note of the relevant provisions of law and the expositions of this

Court in the cited decisions.

9.1. The provisions contained in Rules 23, 23-A, 24, 27 and 33 of Order

XLI CPC read as under: -

“23. Remand of case by Appellate Court.- Where the Court from whose decree an appeal is preferred has disposed of the suit 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

13 may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

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

24. Where evidence on record sufficient, Appellate Court may determine case finally.- Where the evidence upon the record is 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 of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.

***** ***** *****

27. Production of additional evidence in Appellate Court.-

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

***** ***** *****

14

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

Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.”

9.2. While explaining the scope of Rules 23 and 23-A of Order XLI CPC,

in the case of Municipal Corporation, Hyderabad (supra), this Court has

observed as under: -

“32. A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order 41 Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order 41 Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence.

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

34. An order of remand cannot be passed on ipse dixit of the court…...”

9.3. In the case of Sanjay Kumar Singh (supra) relied upon by the

learned counsel for the respondent No. 1, this Court has observed as

under: -

“7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 15 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.

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

10. It could at once be noticed that in terms of Rule 33 of Order XLI

CPC, the Appellate Court is empowered to pass any decree and to make

any order which ought to have been passed or made; and which may be

considered requisite in a case. While the said Rule 33 prescribes general

powers of the Court of appeal, the specific powers of remand are

prescribed in Rules 23 and 23-A of Order XLI CPC. Hence, for the purpose

of the case at hand, reference to aforesaid Rule 33 remains inapposite.

Having said so, we may proceed to examine if the order of remand in the

present case could be justified with reference to the other referred

provisions of Order XLI CPC?

16

11. One of the striking features of the impugned judgment dated

28.06.2019 is that even while dealing with a regular first appeal against the

judgment and decree of the Trial Court, the High Court has not even

adverted to the findings of the Trial Court pertaining to the present case

and has not specified as to how the findings recorded by the Trial Court

were unsustainable or unjustified. As noticed, in the impugned judgment,

the High Court has narrated a few circumstances leaning in favour of the

plaintiff (in paragraph 21) and then a few other circumstances which favour

the genuineness of the sale in question (in paragraph 22) and thereafter,

has observed that the evidence necessary for a proper determination of the

suit had not been brought on record; and that the evidence on record was

insufficient to arrive at a proper finding in favour or against the sale deed in

question. The High Court would further observe that material witnesses

have not been examined and no evidence has been brought in with regard

to passing of consideration.

11.1. With respect, what turns on the observations in the impugned

judgment is that the High Court was unable to arrive at a conclusion on the

basis of the material on record. However, fact of the matter remains that on

the basis of the same material on record, the Trial Court had indeed arrived

at a definite conclusion that the plaintiff had failed to establish her case and

hence, the suit was liable to be dismissed. As indicated hereinabove, the

High Court has not at all referred to the findings of the Trial Court and it is

difficult to find from the judgment impugned as to why at all those findings

17 of the Trial Court were not to be sustained or the decree was required to

be reversed.

11.2. After having taken note of the salient features of the impugned

judgment as also the significant omissions therein, if we refer to the

provisions empowering the Appellate Court to make an order of remand, it

is difficult to find any justification for remand by the High Court in the

present case. As noticed, the scope of remand in terms of Rule 23 of Order

XLI CPC is extremely limited and that provision is inapplicable because the

suit in question had not been disposed of on a preliminary point. The

remand in the present case could only be correlated with Rule 23-A of

Order XLI CPC and for its applicability, the necessary requirements are

that “the decree is reversed in appeal and a re-trial is considered

necessary”. As noticed hereinabove, there is no reason whatsoever

available in the impugned judgment as to why and on what basis the decree

was reversed by the High Court. 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.

12. On the facts of the present case and the nature of order passed by

the High Court, the enunciations and observations in the case of Sanjay

Kumar Singh (supra) are of no application whatsoever as none of the

parties have sought any permission to adduce evidence nor the High Court

18 has specified as to what specific evidence was considered necessary to

enable it to pronounce judgment or for any substantial cause. Moreover, it

does not appear from the judgment of the High Court if the plaintiff-

respondent No. 1 (appellant before the High Court), ever projected that the

Trial Court did not allow 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 any

case for production of additional documents or oral evidence with reference

to the applicable principles. Hence, the general observations of the High

Court cannot be correlated with Rule 27(1) either. With respect, we are

constrained to apply the observations of this Court in Municipal

Corporation, Hyderabad (supra) to say that the present order of remand

has been passed only on ipse dixit of High Court sans any reason or

justification.

13. It gets perforce reiterated that in the suit filed by respondent No. 1,

the Trial Court had indeed returned its findings on the basis of evidence on

record. Whether those findings are sustainable or not is a matter entirely

different and the High Court may examine the same but merely because

the High Court could not reach to a conclusion on preponderance of

probabilities, the evidence on record could not have been treated as

insufficient so as to not pronounce the judgment in terms of Rule 24 of

Order XLI CPC.

14. In regard to the want of any particular evidence, we may observe in

the passing that if the Court finds any particular evidence directly within the

19 control and possession of a party having not been produced, the necessary

consequences like those specified in illustration (g) to Section 114 of the

Evidence Act3 may follow but, 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. We would

hasten to observe that we are not commenting on the merits of the case

either way. The observations herein are only to indicate that the remand of

the suit for trial de novo cannot be considered justified in the present case

from any standpoint.

15. For what has been discussed hereinabove, suffice it would be to

sum up that for a few tentative observations about certain circumstances

existing in favour of the plaintiff and certain other circumstances existing in

favour of the defendants and then, with another observation that plaintiff

was a vital witness, the High Court was not justified in remanding the matter

for trial de novo without recording any finding if the plaintiff was prevented

from examining herself or from adducing any other evidence as also

without explaining as to on what ground the decree was being reversed.

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, be unfavourable to the person who withholds it;

*** *** ***”

20

16. Accordingly, and in view of the above, this appeal succeeds and 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 of 2012), is set

aside; and the said appeal is restored for reconsideration by the High Court

in accordance with law. The parties through their respective counsel shall

stand at notice to appear before the High Court on 20.03.2023.

17. Having regard to the circumstances, there shall be no order as to

costs of the present appeal.

……....……………………. J.

(DINESH MAHESHWARI)

……....……………………. J.

(SUDHANSHU DHULIA) NEW DELHI;

FEBRUARY 27, 2023.

21